William Roger and Joan Ann Thorpe - Page 2

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          petitioners may exclude from gross income under section 104(a)(2)           
          an amount received by petitioner William Roger Thorpe from his              
          employer upon termination of employment on the ground that such             
          amount represents damages received on account of personal injury.           
          As explained in more detail below, we agree with respondent that            
          exclusion under section 104(a)(2) is not authorized and that                
          partial summary judgment in respondent's favor is therefore                 
               Petitioner was employed by International Business Machines             
          Corp. (IBM) until his termination on July 23, 1992.  Petitioner's           
          termination at IBM was effected through petitioner's                        
          participation in the IBM Modified and Extended Individual                   
          Transition Option Program (ITO-II Program).  The ITO-II Program             
          allowed IBM employees to resign or retire early, receiving lump-            
          sum payments and other benefits.                                            
               Petitioner was required to sign a General Release and                  
          Covenant Not to Sue (the release) as a condition of receiving the           

          references are to the Internal Revenue Code in effect for the               
          taxable year in issue.                                                      
               Respondent's motion was filed as a motion for summary                  
          judgment.  We treat it as a motion for partial summary judgment             
          for the reason discussed infra at note 4.                                   
          2    The following is a summary of the relevant facts that do not           
          appear to be in dispute; they are stated solely for the purpose             
          of deciding the pending motion, and they are not findings of fact           
          for this case.  See Fed. R. Civ. P. 52(a); Rule 1(a).                       

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