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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. Moreover, while it need not have been previously
asserted, the absence of any knowledge of the claim on the part
of the employer-payor obviously has a negative impact in
determining the requisite intent of the payment.
Petitioners have the burden of proving the specific amounts
of the payments allocable to claims of tort or tort-type damages
for personal injuries. Failure to meet this burden results in
the entire amount's being presumed not to be excludable. See
Taggi v. United States, supra; Getty v. Commissioner, 91 T.C.
160, 175-176 (1988), affd. as to this issue and revd. on other
issues 913 F.2d 1486 (9th Cir. 1990). The record contains no
evidence upon which an allocation could be based.
The release in this case is the same as that in Webb v.
Commissioner, T.C. Memo. 1996-50, and essentially the same as
that in Sodoma v. Commissioner, T.C. Memo. 1996-275, on appeal
(5th Cir., Aug. 14, 1996). By its terms, Mrs. Keel released IBM
from liability for both contract and tort claims, but not
including claims arising after the date of signature. The
release makes no allocation of the lump-sum payment. As did the
taxpayer in Webb v. Commissioner, supra, petitioners argue that
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