Neil D. and Vy Lubart - Page 8

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          Program participation request and subsequent release in lieu of             
               Respondent argues, pursuant to Commissioner v. Schleier,               
          supra, that even if petitioner could establish an underlying                
          cause of action for age discrimination, a payment made pursuant             
          to the Age Discrimination in Employment Act of 1967 is not                  
          excludable from income under section 104(a)(2).  Age                        
          Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202,            
          81 Stat. 602 (current version at 29 U.S.C. secs. 621-634 (1994)).           

               Petitioner, however, has not limited his arguments to claims           
          brought against IBM under the ADEA.  Rather, petitioner asserts             
          that he released IBM from liability for "potential tort claims,"            
          which would include a claim for age discrimination under the                
          ADEA, but which would not exclude for example, a common law cause           
          of action for emotional distress.  To support his position,                 
          petitioner relies on the following language in Schleier v.                  
          Commissioner, supra at 332 n.6, for the proposition that                    
          "intangible harms of discrimination can constitute personal                 
          injury, and that compensation for such harms may be excludable              
          under �104(a)(2)."                                                          
               Viewing the facts in the light most favorable to petitioner,           
          it can be argued that petitioner had a potential tortlike cause             
          of action for infliction of emotional distress.  Thus, we find,             

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