Allen L. and Diane A. Carey - Page 7

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                  As we see it, there are three types of injuries to which the                           
            IBM payments to Mr. Carey might be sourced.  First, IBM may have                             
            been motivated to set up the retirement program as a method of                               
            ridding itself of "over-age" employees.  However, this source                                
            does not permit exclusion pursuant to section 104(a) under 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 (1994)).                               
            Commissioner v. Schleier, supra.                                                             
                  The second motive for payment might have been future claims                            
            for personal injuries, but this source is also precluded from the                            
            exclusion provided by section 104, Roosevelt v. Commissioner, 43                             
            T.C. 77 (1964); Starrels v. Commissioner, 35 T.C. 646 (1961),                                
            affd. 304 F.2d 574 (9th Cir. 1962), as well as the provision of                              
            the release preserving Mr. Carey's right to pursue claims arising                            
            subsequent to the date of the release, see supra p. 4.  Nor does                             
            the possibility of emotional distress arising out of pressure on                             
            Mr. Carey to sign the release provide a basis for applying the                               
            section 104(a) exclusion herein in the absence of any specific,                              
            meaningful allegations by petitioners in this regard.  Sodoma v.                             
            Commissioner, T.C. Memo. 1996-275.                                                           
                  A third source for the IBM payment might have been Mr.                                 
            Carey's prior medical problems and the possible application of                               
            the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-                              
            336, sec. 2, 104 Stat. 328 (current version at 42 U.S.C. sec.                                
            12101 (1994)); Civil Rights Act of 1991, Pub. L. 102-166, sec.                               




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