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An allocation of a settlement or award payment is documented in either a judgment or a settlement agreement. However, if an allocation between lost profits and recovery of capital is not addressed the burden is on the taxpayer to do so. However, if those documents are silent with respect to the allocation, the burden is on the taxpayer to show it not to be a lost profit. Raytheon Production Corp. v. Commissioner, 144 F.2d 110 (1944). In that instance, the taxpayer will have to make an allocation based on the total amount sought, the various claims made, and the proof supporting those claims. Importantly, an express allocation is not binding on the IRS, although it typically constitutes persuasive evidence of its true nature.
