Leslie R. Foster and Mattie J. Foster, et al. - Page 11

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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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