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dispute between petitioner and IBM that could provide the basis
for settlement.
We agree with petitioner that an employee is not required
to file a formal legal action against an employer prior to
settling an existing claim in order to exclude such a settlement
payment from income under section 104(a)(2). Sodoma v.
Commissioner, supra. Viewing the facts in the light most
favorable to petitioner, it can be argued that petitioner's act
of informing his supervisor of his complaints against IBM is at
least some evidence of an existing dispute between the parties
that could have provided the basis for settlement. Moreover, we
tend to agree with petitioner that the ADA provides for a broad
range of tortlike remedies as discussed by the Supreme Court in
both Burke and Schleier. Thus, we find, for purposes of this
motion only, that petitioner has met the first prong of
excludability under section 104(a)(2) in that he has established
the existence of an underlying tort-type cause of action. See
Commissioner v. Schleier, 515 U.S. 323 (1995); see also Taggi v.
United States, supra at 96 (a claim must be bona fide, but does
not necessarily have to be sustainable or valid).
We now turn to the language of the release itself. The
release in this case is the same as that in Webb v. Commissioner,
T.C. Memo. 1996-50, and essentially the same as that in Sodoma v.
Commissioner, supra. By its terms, petitioner released IBM from
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