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Furthermore, the method used by IBM in calculating the ITO
payment supports our conclusion. The ITO payment was calculated
as follows:
Employees who are approved for and comply with the
terms of the ITO II program will receive the greater of
eight weeks pay or one week's pay for each six months
of service fully or partially completed, up to a
maximum of 52 weeks' pay. * * * The payment will be
made in a lump sum and be based on the employee's
regular salary and years of service as of the day he or
she leaves active employment. * * * This payment is in
lieu of any other form of separation pay or exit
incentive program to which the employee is, may or
might have become entitled. It is IBM's intent to pay
only one incentive/separation type payment to an
employee. * * *
Indeed, in making the ITO payment, which was to be "in lieu of
any other form of separation pay or exit incentive program",
IBM's intent appears to be to "pay only one incentive/separation
type payment to an employee". (Emphasis added.) Accordingly,
based on our review of the facts and circumstances in the instant
record, we conclude that the ITO payment was paid by IBM to
petitioner as severance pay, not to release a tort or tort type
claim.
As respondent has made a prima facie case that the
requirements of the section 104(a)(2) exclusion are not met,
petitioners cannot rest upon mere allegations or denials but must
set forth specific facts showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. at 322; O'Neal v.
Commissioner, 102 T.C. at 674. Petitioners contend that they are
entitled to exclude the ITO payment from gross income pursuant to
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