- 7 -
(5th Cir. 1995). "[T]he critical question is, in lieu of what
was the settlement amount paid?" Bagley v. Commissioner, supra
at 406.
Determination of the nature of the claim is factual. Id.;
Stocks v. Commissioner, 98 T.C. 1, 11 (1992). The first
requirement is the existence of a claim based upon tort or tort
type rights. Commissioner v. Schleier, supra at 331. The claim
must be bona fide, but not necessarily valid; i.e., sustainable.
Sodoma v. Commissioner, T.C. Memo. 1996-275 (citing Taggi v.
United States, 35 F.3d 93, 96 (2d Cir. 1994)); Robinson v.
Commissioner, supra at 126; Stocks v. Commissioner, supra at 10.
In this connection, we note that we have held that claims for
potential future personal injuries do not qualify for exclusion
under section 104(a). Roosevelt v. Commissioner, 43 T.C. 77
(1964); Starrels v. Commissioner, 35 T.C. 646 (1961), affd. 304
F.2d 574 (9th Cir. 1962). Such holdings imply that there must be
an existing claim.
Petitioner asserts that IBM was engaging in systematic
discrimination against employees over the age of 40, that he was
forced to leave the company because of his age, that as a result
he has been diagnosed as having a "major depression" for which he
is presently under psychiatric care, and that age discrimination
was the primary concern of IBM in requiring petitioner to sign
the release. Therefore, petitioner contends that IBM accepted
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