E. Pauline Barnes - Page 10

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          (9th Cir. 1996).  Oklahoma's wrongful termination tort cause of             
          action provides for such a remedy.  Burk v. K-Mart Corp., 770               
          P.2d 24 (Okla. 1989).                                                       
               Petitioner relies upon our decision in McKay v.                        
          Commissioner, 102 T.C. 465 (1994), as precedent for                         
          characterizing damages arising out of a wrongful discharge claim            
          as personal injuries.  However, the Court of Appeals for the                
          Fifth Circuit, in light of Schleier v. Commissioner, supra,                 
          vacated our decision in McKay and remanded the case almost 2                
          months prior to our trial of petitioner's case.  McKay v.                   
          Commissioner, 84 F.3d 433 (5th Cir. 1996), vacating without                 
          published opinion 102 T.C. 465 (1994).  The outcome of that case            
          on remand is still pending, and we decline to rely upon it in any           
               The Supreme Court recently interpreted the meaning of "on              
          account of" personal injuries in the context of punitive damages            
          awarded in a wrongful death action.  In an opinion released after           
          this case was submitted for decision, the Court reasoned that the           
          phrase required a strong causal connection between the injury and           
          the damages received.  O'Gilvie v. United States, 519 U.S. ___,             
          117 S. Ct. 452 (1996).  In rejecting the taxpayers' argument that           
          the phrase requires no more than a "but-for" connection between             
          the damages and personal injury, the Court adopted the                      
          Commissioner's argument that the phrase required the damages to             

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