- 10 -
at 337. The claim must be bona fide, but not necessarily valid;
i.e., sustainable. Taggi v. United States, 35 F.3d 93, 96 (2d
Cir. 1994); Robinson v. Commissioner, supra at 126; Stocks v.
Commissioner, supra at 10. In this connection, we have held that
claims for potential future personal injuries do not qualify for
exclusion under section 104(a). Roosevelt v. Commissioner, 43
T.C. 77 (1964); Starrels v. Commissioner, 35 T.C. 646 (1961),
affd. 304 F.2d 574 (9th Cir. 1962). Those holdings imply that
there must be an existing claim. Moreover, although a claim need
not have been previously asserted, the absence of any knowledge
of the claim on the part of the employer-payor obviously has a
negative impact in determining the requisite intent for the
payment. Sodoma v. Commissioner, T.C. Memo. 1996-275; see also
Keel v. Commissioner, T.C. Memo. 1997-278; Foster v.
Commissioner, T.C. Memo. 1996-26.
Petitioner asserts that, at the time that he signed the
release, he had a bona fide claim against IBM for age
discrimination and that he executed the release and accepted the
ITO payment from IBM in lieu of litigation. Respondent contends
that petitioner's failure to lodge, much less even allege, any
tort-type claim against IBM prior to or at the time of signing
the release establishes that there was no bona fide dispute
between petitioner and IBM that could provide the basis for
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