underpayment. Therefore, if the Tax Court on remand determines that the failure to pay tax on interest alone (excluding contingent fees) constitutes a substantial underpayment under the statutory definition, the Commissioner may recalculate and assess a new penalty. VI. In summary, we REVERSE the Tax Court’s decision to tax contingent fees and REMAND for a recalculation of the deficiency and any appropriate penalties. We AFFIRM the Tax Court’s allocation of the s ion of a net operating loss carryover attributable to the settlement proceeds received in 1991. 5 . It was not until O’Gilvie that the Court made plain that punitive damages were not excludable under 26 U.S.C. § 104(a)(2) and therefore were subject to tax. See Robinson v. Commissioner, 102 T.C. 116, 1994 WL 26303 (1994) (<HOLDING>); Threlkeld v. Commissioner, 87 T.C. 1294, 1986
holding that punitive damages are not allowed under the flsa recognizing that recklessness or even gross negligence is insufficient to support punitive damages holding that punitive damages are excludable from gross income under 26 usc  104a2 holding that punitive damages are not awarded on account of personal injuries or sickness pursuant to 26 usc  104a2 and therefore constitute gross income holding that back pay awards are not excludable from gross income under 26 usc  104a2 1988 because the overwhelming weight of authority supports the view that an award of back pay under title vii does not constitute the legal remedy of damages