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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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