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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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