Wilton Earl and Dorothy M. Keel - Page 10

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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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