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found, any authority for the proposition that the taxpayer must
file a claim prior to the settlement agreement in order for the
settlement proceeds to qualify for the exclusion. Accordingly,
we reject respondent's argument that the failure to file a claim
prior to signing the release precludes exclusion of the ITO
payment from gross income pursuant to section 104(a)(2).
We do note, however, that the failure to file such a claim
may be taken into account in deciding whether the taxpayer
released a tort or tort type claim. See Webb v. Commissioner,
T.C. Memo. 1996-50. Additionally, we have specifically stated
that a claim need not have been previously asserted against the
employer, although the absence of any knowledge of the claim on
the part of the employer-payor has a negative impact in
concluding whether the employer-payor had the requisite intent of
making the payment "on account" of a personal injury. Keel v.
Commissioner, T.C. Memo. 1997-278; Sodoma v. Commissioner, T.C.
Memo. 1996-275.
Based on our review of the facts and circumstances in the
instant record, we conclude that the ITO payment was severance
pay to petitioner and not settlement proceeds for the release of
tort or tort type claims. Several considerations support our
conclusion. On July 28, 1992, petitioner was informed that the
project to which he was assigned would no longer be funded after
October 1992 and that he should find another position within IBM
or sign up for the ITO II program. On July 31, 1992, after 2
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