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Program participation request and subsequent release in lieu of
litigation.
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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