Wilton Earl and Dorothy M. Keel - Page 7

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            United States, supra at 1160 (quoting Warner v. Commissioner, 526                         
            F.2d at 2).                                                                               
                  In a similar vein, the fact that respondent may have treated                        
            other taxpayers differently has generally been considered                                 
            irrelevant.  Davis v. Commissioner, 65 T.C. 1014, 1022 (1976).                            
            Some selectivity in enforcement is not in itself a Federal                                
            constitutional violation of due process or of equal protection                            
            where the selection is not deliberately based on an unjustifiable                         
            standard such as race, religion, or other arbitrary                                       
            classification.  Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d                            
            1408, 1418-1419 (4th Cir. 1985); Penn-Field Indus., Inc. v.                               
            Commissioner, 74 T.C. 720, 722-723 (1980) (citing Oyler v. Boles,                         
            368 U.S. 448 (1962)).  No evidence of selectivity based on any                            
            unjustifiable standard is reflected in the record herein.                                 
                  We now turn to petitioners' claim that, in any event, the                           
            lump-sum payment is excludable from gross income under section                            
            104(a)(2) because Mrs. Keel suffered personal injury in signing                           
            the release.  As petitioners put it:                                                      
                  I [Mrs. Keel] filed an amendment tax return to my [her]                             
                  1992 Tax.  "Code Sections 104(a) provides in relevant                               
                  part that 'gross income does not include ....(2) the                                
                  amount of any damages received (whether by suit or                                  
                  agreement and whether as lump sums or periodic                                      
                  payments) on account of personal injuries or                                        
                  sickness'".  Based on this information and the                                      
                  agreement I [Mrs. Keel] signed with IBM, the settlement                             
                  should be nontaxable income.                                                        
                        My [Mrs. Keel's] amendment was based on the                                   
                  "personal injuries" statement.  When I [Mrs. Keel]                                  
                  signed that ITO Waiver with IBM, I indeed suffered                                  

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