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explain how they think they could benefit in this respect and, in
any event, fail to set forth sufficient facts in respect of any
such claim.
In addition to the inadequacies of petitioners' position
previously discussed, we note that petitioners have the burden of
proving the specific amounts of the payments allocable to claims
of tort or tort-type damages for personal injuries. Failure to
meet this burden results in the entire amount's being presumed
not to be excludable. See Taggi v. United States, 35 F.3d at 96;
Getty v. Commissioner, 91 T.C. 160, 175-176 (1988), affd. as to
this issue, revd. on other issues 913 F.2d 1486 (9th Cir. 1990).7
But see Lane v. United States, 902 F.Supp. 1439 (W.D. Okla.
1995). The releases make no allocation, and petitioners have set
forth no facts upon which they would rely to prove an allocation.
Indeed, the fact that the payments were based on time of service
and rate of pay, as well as USAA's description of the amounts as
"special transition pay", points in the direction of the payments
having been severance pay rather than a payment for personal
injury. See Webb v. Commissioner, T.C. Memo. 1996-50.
In sum, viewing the facts in a light most favorable to
petitioners, Kroh v. Commissioner, supra, we conclude that
respondent has made a prima facie case to support her motion for
7 See also Whitehead v. Commissioner, T.C. Memo. 1980-508.
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