Neil D. and Vy Lubart - Page 10

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          impact in determining the requisite intent of the payment.                  
          Brennan v. Commissioner, supra;  Sodoma v. Commissioner, supra;             
          see also Keel v. Commissioner, T.C. Memo. 1997-278; Foster v.               
          Commissioner, T.C. Memo. 1996-26.   Respondent further argues               
          that IBM did not make the payment on account of a personal                  
          injury.  The release form appears to be a standard document used            
          by IBM for all of its employees who participate in the ITO II               
          Program.  Moreover, the amount of the $74,985 lump-sum payment              
          was calculated on the number of years of service and petitioner's           
          salary.  Finally, the release states that if petitioner were                
          rehired by IBM, he could be required to repay some portion of the           
          lump-sum payment based on the number of weeks off the IBM payroll           
          compared with the number of weeks' salary used to calculate the             
          lump-sum payment.  As in Brennan v. Commissioner, supra, Sodoma             
          v. Commissioner, supra, and Webb v. Commissioner, supra, the                
          lump-sum payment herein appears to have been severance pay rather           
          than a payment for personal injury.  Severance pay, just like the           
          pay it replaces, is taxable income.                                         
               Finally, we note that petitioner has not alleged or come               
          forward with any evidence of the specific amounts of the payments           
          allocable to claims of tort or tort-type damages for personal               
          injuries.  The release makes no allocation, and petitioner has              
          not set forth any facts upon which he would rely to prove an                
          allocation.  Indeed, the fact that the $74,985 was based on years           

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