Julius R. Phillilps and Marcia G. Phillips - Page 9

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          Robinson v. Commissioner, supra at 126; Stocks v. Commissioner,             
          supra at 10; Sodoma v. Commissioner, T.C. Memo. 1996-275 (citing            
          Taggi v. United States, 35 F.3d 93, 96 (2d Cir. 1994)).  In this            
          connection, we have held that claims for potential future                   
          personal injuries do not qualify for exclusion under section                
          104(a).  Roosevelt v. Commissioner, 43 T.C. 77 (1964); Starrels             
          v. Commissioner, 35 T.C. 646 (1961), affd. 304 F.2d 574 (9th Cir.           
          1962).  Such holdings imply that there must be an existing claim.           
          Moreover, while the claim need not have been previously asserted,           
          the absence of any knowledge of the claim on the part of the                
          employer-payor obviously has a negative impact in determining the           
          requisite intent of the payment.  Sodoma v. Commissioner, T.C.              
          Memo. 1996-275; see also Keel v. Commissioner, T.C. Memo. 1997-             
          278; Foster v. Commissioner, T.C. Memo. 1996-26.                            
               Petitioner asserts that he had a bona fide claim against IBM           
          pursuant to the ADA for infliction of emotional distress, and               
          therefore IBM accepted his ITO II Program participation request             
          and subsequent release in lieu of litigation.  In so arguing,               
          petitioner places heavy reliance on the Supreme Court's decision            
          in Commissioner v. Schleier, supra.  In Schleier, the Supreme               
          Court noted that "one of the hallmarks of traditional tort                  
          liability is the availability of a broad range of damages to                
          compensate the plaintiff fairly for injuries caused by the                  
          violation of his legal rights."  Id. at 335 (citing United States           





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