Robert C. Sodoma and Gwen A. Sodoma - Page 10

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          which suggests that, outside of the ADEA context, discrimination            
          can result in intangible personal injuries.  Petitioners do not             
          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 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).6           
          But see Lane v. United States, 902 F.Supp. 1439 (W.D. Okla.                 
          1995).  The release makes no allocation, and petitioners have set           
          forth no facts upon which they would rely to prove an allocation.           
          Indeed, the fact that the $69,639 payment was based on time of              
          service and rate of pay points in the direction of its having               
          been severance pay rather than a payment for personal injury.               
          See Webb v. Commissioner, T.C. Memo. 1996-50, which involved the            
          same payor and substantially the same plan as involved herein.              

          6  See also Whitehead v. Commissioner, T.C. Memo. 1980-508.                 

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