Michael G. Kroposki - Page 9

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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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