John Bothe & Barbara Bothe - Page 14

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          testified that “the whole basis of the lawsuit” was that he “felt           
          [he] was being discriminated because [he] was going to Gamblers             
          Anonymous.”                                                                 
               Finally, we note that Mr. Lockwood testified that the                  
          settlement payment was made to compensate petitioner for “lost              
          time” and so that “Mr. Bothe [would] cease to be employed by [the           
          Meadowlands] in any capacity”.  Mr. Lockwood further testified              
          that at no time during the settlement negotiations did petitioner           
          allege that he had suffered any physical injury or physical                 
          sickness as a result of his employment by the Meadowlands, nor              
          was it the Meadowlands’ intention to compensate petitioner for              
          any physical injury or physical sickness.                                   
               Mr. Lockwood’s testimony on these points is corroborated by            
          a statement in the settlement agreement that provides that, for             
          income tax purposes, the amount to be paid to petitioner is “in             
          the nature of compensation”.                                                
               Based upon the foregoing, we conclude that petitioner did              
          not receive the settlement payment on account of any personal               
          physical injury or physical sickness as those terms are used in             
          section 104(a)(2).  Accordingly, we need not address whether the            
          underlying cause of action giving rise to the settlement was                
          based upon tort or tort-type rights.  See Commissioner v.                   
          Schleier, 515 U.S. at 337.                                                  







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