William Roger and Joan Ann Thorpe - Page 6

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          contends that summary judgment is warranted on the following                
          grounds: (1) Petitioner did not have a claim against IBM at the             
          time that he signed the release by which he obtained the ITO                
          payment; (2) IBM did not make the payment on account of personal            
          injury or sickness; (3) no portion of the payment is allocated to           
          any personal injury or other claim; and (4) a payment made to a             
          taxpayer under the Age Discrimination in Employment Act (ADEA) is           
          not excludable from gross income under section 104(a)(2).                   
          Included as an attachment to respondent's Motion for Summary                
          Judgment is a letter from petitioner to respondent's counsel                
          dated January 21, 1997, setting forth petitioners' position                 
          regarding the basis for the exclusion of the ITO payment from               
          petitioners' gross income.                                                  
          This matter was called for hearing at the Court's motions                   
          session in Washington, D.C., on May 28, 1997.  Counsel for                  
          respondent appeared at the hearing and presented argument in                
          support of the pending motion.  Although petitioners did not                
          appear at the hearing, they did file a written statement with the           
          Court pursuant to Rule 50(c).                                               
               Petitioners' Rule 50(c) statement includes allegations that            
          IBM is responsible for certain business failures that petitioner            
          suffered after terminating his employment at IBM.  In addition,             
          petitioner asserts that the release that he signed at the time of           
          his resignation from IBM represented a settlement under which he            

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