- 23 - (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 thePage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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