Leslie R. Foster and Mattie J. Foster, et al. - Page 9

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               (1)  Each of the participants was over 40 years of age at              
          the time they executed the releases.                                        
               (2)  The only consideration for the payments received from             
          USAA was the execution of the releases.                                     
               (3)  USAA did not treat the payment as compensation for                
          retirement plan purposes.                                                   
               (4)  USAA was engaged in a systematic violation of the Age             
          Discrimination in Employment Act of 1967, Pub. L. 90-202, 81                
          Stat. 602 (current version at 29 U.S.C. secs. 621-634 (1988))               
          (ADEA), and age discrimination was its primary concern in                   
          requiring the participants to sign the release agreements.6                 
               (5)  Each of the participants suffered personal injuries as            
          a result of the discrimination practices of USAA.                           
               The only specific factual assertion is that the participants           
          are within the age group, i.e., over 40, entitled to claim the              
          benefit of the ADEA.  However, it has been established that a               
          mere allegation of membership in a protected class is                       
          insufficient to sustain a claim for exclusion under section                 
          104(a).  See Starrels v. Commissioner, 35 T.C. at 648; Galligan             
          v. Commissioner, supra.  Petitioners' other assertions are                  
          conclusory statements unsupported by specific facts as required             

          6  Petitioners make no claim that the participants did not sign             
          the releases voluntarily as the documents recite.                           

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