Robert C. Sodoma and Gwen A. Sodoma - Page 7

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          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                
          intent of the payment.4  Any problems in respect of these factors           
          are resolved in this case by the stipulation of the parties that            
          there was no preexisting claim based on age or other unlawful               
          discrimination.  See supra p. 4.                                            
               Viewing the facts in the light most favorable to petitioner,           
          see Kroh v. Commissioner, 98 T.C. 383, 390 (1992), it can be                
          argued that the stipulation as to the absence of a "pre-existing            
          claim" together with the preservation of future claims by the               
          release, see supra p. 4, leaves open the possibility of a claim             
          of discrimination based on the settlement itself.  Such a                   
          possibility has been adverted to in Webb v. Commissioner, T.C.              
          Memo. 1996-50, and Galligan v. Commissioner, T.C. Memo. 1993-605,           
          although neither of these cases accepted such an argument as a              
          ground for decision.  Whatever may be the merits of an assertion            
          of such a window of opportunity, we see no basis for giving it              
          any consideration herein.  Petitioners do no more than infer such           
          an approach; they do not set forth any supporting allegations of            
          fact in support thereof beyond their general assertions to which            
          we now turn our attention.                                                  

          4  See Foster v. Commissioner, T.C. Memo. 1996-26.                          

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