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claims, which petitioner argues are claims for damages on account
of personal injuries within the meaning of section 104(a)(2)
(section 104(a)(2) damages). We need not make the apportionment
requested by petitioner because petitioner has failed to prove
that he received any section 104(a)(2) damages.
When petitioner was laid off by Boehringer, he, like other
laid off employees, was offered a package of benefits that
included a special severance payment. To obtain a special
severance payment, petitioner had to sign the separation
agreement, which he did not do. Instead, petitioner entered into
negotiations with Boehringer concerning his rights “under the
ADEA and any other theories that are meritorious”. Apparently,
Boehringer did not think much of petitioner’s claims, but did
offer to increase what it described as “the original severance
offer” by $2,500. Petitioner and Boehringer ultimately entered
into the final agreement and, pursuant thereto, petitioner
received the payment.
Upon consideration of all the facts and circumstances, we
believe and so find that Boehringer simply extended the period
during which petitioner could accept its original offer of a
special severance payment, sweetening it a bit, and, eventually,
petitioner accepted the sweetened offer. That finding is
supported by the terms of the final agreement, which, in relevant
part, is substantially the same as the separation agreement. The
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