Clarence D. Kightlinger - Page 20

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          Recovery for the Defendants' interference with the class members'           
          economic advantage as employees is similarly not on account of              
          personal injury.  See Commissioner v. Schleier, supra, United               
          States v. Burke, supra, Robinson v. Commissioner, 102 T.C. at               
          126.  Petitioner asserts that individual class members did not              
          have a direct contractual relationship with the Defendants.  Even           
          if such assertion is true, class members based their claim for              
          interference with prospective economic advantage on an                      
          employer/employee relationship.  Their complaint sought remedy              
          for the Defendants' alleged wrongful interference with their                
          rights "to enjoy the fruits and advantages of their industries              
          and efforts as employees".  This is further evidenced by the                
          November 1991 notice to the class members, which stated:                    
               The remedy that we would be asking for [is]                            
               compensation for losses in wages and benefits for some                 
               appropriate period of time but not less than the                       
               duration of the current contract * * * [Emphasis                       
               Clearly, recovery for economic injury based on such a                  
          contractual type claim is excluded from the scope of section                
          104(a)(2).  See Robinson v. Commissioner, supra, and cases cited            
               The Plaintiffs also sought punitive damages for the harm               
          suffered as a result of the Defendants' alleged wrongful conduct.           
          Contrary to petitioner's suggestion, the exclusion provided by              
          section 104(a)(2), as in effect for the year in issue, does not             

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