Edward A. and Audrey Primozic, et al . - Page 5




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          Co. Transition Plan (MSTP).  The MSTP provided a lump-sum payment           
          and IBM-funded health benefits that were more generous than the             
          benefits received under IBM’s regular severance program.  IBM               
          informed its employees that it would withhold appropriate                   
          Federal, State, and local taxes from MSTP lump-sum payments.                
               On June 30, 1993, Edward, Kenneth, and Thomas all agreed to            
          participate in the MSTP program.  In order to join the MSTP, the            
          participants were required to sign a general release and covenant           
          not to sue, releasing IBM from all liabilities that might exist,            
          in contract, in tort, or any other type of claim, resulting from            
          the employees' termination.  The payments petitioners received              
          were all calculated according to the MSTP formula, an amount                
          equal to 1 week’s pay for every 6 months of IBM service either              
          fully or partially completed as of the date of separation.                  
          Edward, Kenneth, and Thomas received MSTP payments of $140,010,             
          $147,171, and $83,352, respectively.  Petitioners established               
          their own consulting business, Strategic Choices, Ltd., following           
          their departure from IBM.                                                   
               On their 1993 income tax returns petitioners excluded from             
          income the entire amounts of the MSTP payments received.  In                
          disclosure statements filed with their returns, petitioners                 
          asserted that the authority to exclude the payments from income             
          was section 104(a)(2).                                                      
                                       OPINION                                        





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