Robert C. Sodoma and Gwen A. Sodoma - Page 8

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               Petitioners' basis for asserting that there are substantial            
          issues of fact that require denial of respondent's motion is that           
          they would offer the following evidence:                                    
               (1)  Mr. Sodoma was over 40 years of age at the time he                
          executed the release.                                                       
               (2)  The only consideration for the payment received from              
          IBM was the execution of the release.                                       
               (3)  IBM did not treat the payment as compensation for                 
          retirement plan purposes.                                                   
               (4)  IBM 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 Mr. Sodoma to sign the release agreement.5                        
               (5)  Mr. Sodoma suffered personal injuries as a result of              
          the discrimination practices of IBM.                                        
               The only specific factual assertion is that Mr. Sodoma is              
          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             

          5  Petitioners make no claim that Mr. Sodoma did not sign the               
          release voluntarily as the document itself recites.                         

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