Hughes A. and Marilyn B. Bagley - Page 23

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            (1942), which held that liquidated damages under the Fair Labor Standards Act               
            (FLSA) were "compensation, not a penalty or punishment".  The Court, however,               
            distinguished liquidated damages recovered under the FLSA from those recovered              
            under the ADEA.  In finding that section 104(a)(2) did not apply to liquidated              
            damages under the ADEA, the Court stated, "'Congress intended for liquidated                
            damages [under the ADEA] to be punitive in nature.'"  Commissioner v.                       
            Schleier, 515 U.S.    , 115 S.Ct. at 2165 (quoting Trans World Airlines, Inc.               
            v. Thurston, 469 U.S. 111, 126 (1985)).                                                     
                  The taxpayer in the Schleier case made essentially the same argument as               
            the taxpayer in Horton v. Commissioner, 100 T.C. 93 (1993), with regard to                  
            United States v. Burke, 504 U.S. 229 (1992).  See Horton v. Commissioner,                   
            supra at 96-99.  The taxpayer argued that the Burke case stood for the                      
            proposition that a taxpayer need only prove that the underlying claim was                   
            based on a "tort or tort type rights" to be excludable under section                        
            104(a)(2).  In addressing the taxpayer's argument that the Burke case limited               
            the analysis under section 104(a)(2) to determining whether recovery is based               
            on "tort or tort type rights", the Supreme Court stated at 515 U.S.    , 115                
            S.Ct. at 2167:                                                                              
                        Second, and more importantly, the holding of Burke is                           
                  narrower than * * * [the taxpayer] suggests.  In Burke, following                     
                  the framework established in the IRS regulations, we noted that                       
                  section 104(a)(2) requires a determination whether the underlying                     
                  action is "based upon tort or tort type rights."  United States v.                    
                  Burke, 504 U.S., at 234, 112 S.Ct., at 1870.  In so doing,                            
                  however, we did not hold that the inquiry into "tort or tort type                     
                  rights" constituted the beginning and end of the analysis.  In                        
                  particular, though Burke relied on Title VII's failure to qualify                     
                  as an action based upon tort type rights, we did not intend to                        
                  eliminate the basic requirement found in both the statute and the                     
                  regulation that only amounts received "on account of personal                         
                  injuries or sickness" come within section 104(a)(2)'s exclusion.                      
                  Thus, though satisfaction of Burke's "tort or tort type" inquiry                      
                  is a necessary condition for excludability under section                              
                  104(a)(2), it is not a sufficient condition.  [Fn. ref. omitted.]                     

                  In our view, the Supreme Court in the Schleier case adopted a position                
            contrary to our holding in the Horton case, that the underlying claim is the                





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