William Roger and Joan Ann Thorpe - Page 10

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          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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