- 10 -
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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