Nancy J. Hukkanen-Campbell - Page 10




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          taxpayer.  Central Foundry Co. addressed whether a corporation              
          could deduct the reimbursement of shareholders’ expenses from a             
          successful proxy fight as ordinary and necessary business                   
          expenses.  The Court stated that no matter which remedy the                 
          shareholder selected, a derivative action or a proxy contest, it            
          was the proximate relationship to the corporation and the benefit           
          to the corporation that determined whether the expenses were                
          deductible.  Central Foundry Co., however, has not been relied              
          upon by this Court, or any other court, for guidance in                     
          determining whether recoveries by taxpayers are excludable from             
          gross income under section 104(a)(2).  Thus, we do not view                 
          Central Foundry Co. as persuasive support for petitioner’s                  
          position that the focus should be on the legislative policy                 
          underlying title VII rather than the possible remedies available            
          to claimants.                                                               
               More important, however, is the fact that the Supreme Court            
          did not follow the dissent’s view in Burke and held that a claim            
          under title VII is not based on a “tort or tort type” right,                
          taking account of the kinds of remedies that may be awarded for             
          that claim.  United States v. Burke, supra at 234-237.  Because             
          pre-1991 title VII remedies were limited to backpay and                     
          injunctive relief, the Court held that a sex discrimination claim           
          did not assert a “tort or tort type” right.  Regardless of                  
          whether petitioner’s claims may have had an analogue at common              






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