Brief of Amicus Curiae Professor Timothy M. Todd, Jr., In Support of Respondent in Perez v. Commissioner, U.S. Tax Court, No. 9103-12, 144 T.C. No. 4

This Court has recognized that a proper exclusion under § 104(a)(2) requires some tortious, wrongful, or otherwise unlawful harm to befall the taxpayer; here, because of the taxpayer’s informed consent and that the Egg Donor Agreement is a bargained-for service contract, this required harm did not occur. Amicus therefore argues that the payments petitioner received are not excludable from income under § 104(a)(2), as they are not “damages” within the meaning of § 104(a)(2). Without this sensible limit on “damages,” all sorts of payments made under personal service contracts where physical injury results would become non-taxable, like wages to athletes, theatrical performers, carpenters, and even office workers with carpal tunnel syndrome.