- 12 - 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 demonstratesPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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