Neil D. and Vy Lubart - Page 7

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          was the settlement amount paid?"  Bagley v. Commissioner, supra             
          at 406.                                                                     
               Determination of the nature of the claim is factual. Id.;              
          Stocks v. Commissioner, 98 T.C. 1, 11 (1992).  The first                    
          requirement is the existence of a claim based upon tort or                  
          tortlike rights.  Commissioner v. Schleier, supra at 331.  The              
          claim must be bona fide, but not necessarily valid; i.e.,                   
          sustainable.   Sodoma v. Commissioner, T.C. Memo. 1996-275                  
          (citing Taggi v. United States, 35 F.3d 93, 96 (2d Cir. 1994));             
          Robinson v. Commissioner, supra at 126; Stocks v. Commissioner,             
          supra at 10.  In this 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).  Those holdings imply that              
          there must be an existing claim.                                            
               Petitioner asserts that IBM was engaging in systematic                 
          discrimination against employees over the age of 40, that he was            
          forced to leave the company because of his age, that as a result            
          he suffered from a severe state of depression for which he was              
          medically treated, and that age discrimination was the primary              
          concern of IBM in requiring petitioner to sign the release.                 
          Therefore, petitioner contends that IBM accepted his ITO II                 

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