                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL ENRIGHT; JULIE A.                        No. 10-72643
ENRIGHT,
                                                 Tax Ct. No. 27955-08
               Petitioners - Appellants,

  v.                                             MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                           Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Michael and Julie A. Enright appeal pro se from the Tax Court’s judgment

concluding that a $57,500 payment that Julie Enright received under a settlement

agreement was not excludable from their gross income. We have jurisdiction


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 26 U.S.C. § 7482(a)(1). We review de novo the Tax Court’s conclusions of

law and for clear error its findings of fact, Rivera v. Baker West, Inc., 430 F.3d

1253, 1256 (9th Cir. 2005), and we affirm.

      The Tax Court properly concluded that the settlement was not excludable

from the Enrights’ gross income because neither the settlement agreement nor the

facts and circumstances of the case suggested that the settlement was based on any

physical injury or physical sickness. See 26 U.S.C. § 104(a)(2) (exempting a

settlement payment based on personal physical injuries or physical sickness from

taxation, but not treating emotional distress as a physical injury or physical

sickness); Rivera, 430 F.3d at 1257 (to determine whether a settlement is based on

physical injury or physical sickness, courts consider the settlement agreement and

the facts and circumstances of the case).

      The Enrights’ remaining contentions are unpersuasive.

      AFFIRMED.




                                            2                                    10-72643
