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his ITO II Program participation request and subsequent release
in lieu of litigation.
Respondent argues, pursuant to Commissioner v. Schleier,
supra, that even if petitioner could establish an underlying
cause of action for age discrimination, a payment made pursuant
to the Age Discrimination in Employment Act of 1967 is not
excludable from income under section 104(a)(2). Age
Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202,
81 Stat. 602 (current version at 29 U.S.C. secs. 621-634 (1994)).
Petitioner, however, has not limited his arguments to claims
brought against IBM under the ADEA. Rather, petitioner asserts
that he released IBM from liability for "potential tort claims",
which would include both a claim for age discrimination under the
ADEA and a common law cause of action for emotional distress. To
support his position, petitioner relies on Commissioner v.
Schleier, supra at 332 n.6, for the proposition that "intangible
harms of discrimination can constitute personal injury, and that
compensation for such harms may be excludable under �104(a)(2)."
Viewing the facts in the light most favorable to petitioner,
it can be argued that petitioner had a potential tortlike claim
for infliction of emotional distress. Thus, we assume, for
purposes of this motion only, that petitioners have met the first
prong of excludability under section 104(a)(2).
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Last modified: May 25, 2011