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Determination of the nature of the claim is factual. Bagley
v. Commissioner, supra; Stocks v. Commissioner, 98 T.C. 1, 11
(1992). The most important element is the intent of the payor.
Robinson v. Commissioner, supra at 127.
Essential to petitioners' ability to satisfy the first
requirement is the existence of claims "based upon tort or tort
type rights". See supra p. 5. The parties and the amicus curiae
have advanced extensive arguments as to whether such claims must
have been valid claims that were asserted prior to the
settlements. We are satisfied that the only requirement is that
there be a claim which is bona fide, not necessarily valid, i.e.,
sustainable. Taggi v. United States, 35 F.3d 93, 96 (2d Cir.
1994); Robinson v. Commissioner, supra at 126; Stocks v.
Commissioner, supra at 10. In this connection, we note that we
have held that claims for potential future personal injuries do
not qualify for exclusion under section 104(a). Roosevelt v.
Commissioner, 43 T.C 77 (1964); Starrels v. Commissioner, 35 T.C.
646 (1961), affd. 304 F.2d 574 (9th Cir. 1962). Such holdings
imply that there must be an existing claim. Moreover, while it
need not have been previously asserted, the absence of any
knowledge of the claim on the part of the employer-payor
obviously has a negative impact in determining the requisite
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