Wilton Earl and Dorothy M. Keel - Page 11

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            the release itself was the cause of the injury.  Petitioners have                         
            presented no evidence as to any claims Mrs. Keel may have had,                            
            whether or not filed with her employer.  While we can surmise                             
            that Mrs. Keel suffered from the prospect of being unemployed, in                         
            order to decide the issue before us, we must ascertain the intent                         
            of her employer in making the lump-sum payment to her.                                    
                  The amount of the lump-sum payment was calculated on a                              
            number of weeks of service and Mrs. Keel's salary.  The release                           
            states that if Mrs. Keel were rehired by IBM, she could be                                
            required to repay some portion of the lump-sum payment based on                           
            the number of weeks off the IBM payroll compared with the number                          
            of weeks' salary used to calculate the lump-sum payment.  As in                           
            Sodoma v. Commissioner, supra, and Webb v. Commissioner, supra,                           
            the lump-sum payment herein appears to have been severance pay                            
            rather than a payment for personal injury.  Severance pay, just                           
            like the pay it replaces, is taxable income.                                              
                  Finally, we note that aside from the assertion in their                             
            memorandum brief in respect of the claimed personal injuries, see                         
            supra pp. 7-8, we are furnished with no clue as to the nature of                          
            the claimed injuries.  It goes without saying that an assertion                           
            on brief is not evidence.  Moreover, even if we were to treat it                          
            as the equivalent of testimony by Mrs. Keel, it would not be                              
            sufficient to satisfy petitioners' burden of proof.  See Kurowski                         
            v. Commissioner, 917 F.2d 1033, 1036 (7th Cir. 1990), affg. T.C.                          
            Memo. 1989-149 (where the Court of Appeals specifically found                             

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