Jesse F. Webb - Page 8

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          without published opinion 676 F.2d 682 (1st Cir. 1982). In order            
          to exclude a settlement or a recovery, a taxpayer mustdemonstrate           
          (1) that the underlying cause of action giving rise to the                  
          settlement or recovery is based upon tort or tort-type rights and           
          (2) that the damages were received on account ofpersonal injuries           
          or sickness. Commissioner v. Schleier, 515 U.S. at    ,115 S. Ct.           
          at 2167.                                                                    
               Respondent argues that (1) there is no underlying cause of             
          action giving rise to a settlement or recovery; i.e., the                   
          ITOpayment or allowance does not constitute "damages", and (2)              
          IBMdid not pay petitioner the ITO allowance on account of                   
          personal injury. Petitioner contends that because the ITO payment           
          was in exchange for the Release which included tort claims and              
          was intended to avoid litigation, it was a tort                             
          settlement.Petitioner also contends that the ITO allowance was              
          paid on account of personal injury, since the loss of a job gives           
          rise tostress-related medical expenses, lost wages, and pain and            
          suffering, just as the typical personal injury described in                 
          Commissioner v. Schleier, 515 U.S. at , 115 S. Ct. at 2163-2164,            
          does. Petitioner states that it took him 1-1/2 years tosecure               
          full-time employment.  At the time petitioner signed the Release,           
          he had made noclaims against IBM. The Release was not the result            
          of settlement negotiations between petitioner and IBM. Indeed,              








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