- 8 -
102, 105 Stat. 1072 (current version at 42 U.S.C. sec. 1981a
(1994)). See Phillips v. Commissioner, T.C. Memo. 1997-336, in
which we elaborated on these provisions including the possible
application to emotional distress arising from termination of
employment. We think the record herein is far from adequate to
provide a sufficient basis for denying respondent's motion, but
we need not rest our decision on this ground because,
irrespective of any definitive conclusion on this score,
respondent would still be entitled to have the motion granted.
Gajda v. Commissioner, T.C. Memo. 1997-345; Phillips v.
Commissioner, supra.
Petitioners have the burden of proving the 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's being presumed not to be excludable. See Taggi
v. United States, supra; Getty v. Commissioner, 91 T.C. 160, 175-
176 (1988), affd. as to this issue and revd. on other issues 913
F.2d 1486 (9th Cir. 1990).
Mr. Carey did not file a claim with IBM prior to the signing
of the release. The release in this case is essentially the same
as that in the many other cases involving IBM separation pay
which have come before this Court. Gajda v. Commissioner, supra;
Lubart v. Commissioner, T.C. Memo. 1997-343; Thorpe v.
Commissioner, T.C. Memo. 1997-342; Phillips v. Commissioner,
supra; Morabito v. Commissioner, T.C. Memo. 1997-315; Sodoma v.
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