William Roger and Joan Ann Thorpe - Page 12

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          agree, that IBM did not make the payment on account of a personal           
          injury.  The release form appears to be a standard document used            
          by IBM for all of its employees who participated in the ITO-II              
          Program.  Moreover, the amount of the ITO payment was calculated            
          on the number of years of service and petitioner's salary.                  
          Finally, the release states that if petitioner were rehired by              
          IBM, he could be required to repay some portion of the ITO                  
          payment based on the number of weeks off the IBM payroll compared           
          with the number of weeks' salary used to calculate the payment.             
          As in Sodoma v. Commissioner, supra, and Webb v. Commissioner,              
          supra, the lump-sum payment herein appears to have been severance           
          pay, rather than a payment for personal injury.  Severance pay,             
          just like the pay it replaces, is taxable income.                           
               Finally, we note that petitioners have not alleged or come             
          forward with any evidence of the specific amount of the ITO                 
          payment that is allegedly allocable to claims of tort or tort               
          type damages for personal injuries.  Failure to do so results in            
          the entire amount being presumed to be taxable.  See Taggi v.               
          United States, supra; Getty v. Commissioner, 91 T.C. 160, 175-176           
          (1988), affd. as to this issue and revd. on other issues 913 F.2d           
          1486 (9th Cir. 1990).  The release makes no allocation, and                 
          petitioners have not set forth any facts upon which they would              
          rely to prove an allocation.  Indeed, the fact that the ITO                 
          payment was based on time of service and rate of pay demonstrates           

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