- 23 - incentive program. The funds were distributed on the basis of a point system that reflected pension eligibility, as well as age and seniority. The entire distribution arrangement revolved around lost wages and retirement benefits and sought to make class members "economically whole". Petitioner contends that economic loss can be used to measure the extent of personal injury, as is the case in many automobile accident injury cases. In this regard, petitioner relies on Byrne v. Commissioner, 883 F.2d 211, 215 (3d Cir. 1989), revg. 90 T.C. 1000 (1988), for the proposition that nonpersonal consequences of a personal injury, such as loss of future income, are often the most persuasive means of proving the extent of the personal injury that was suffered. We agree that using economic loss factors as a yardstick to measure the extent of personal injury does not necessarily bar a recovery from the scope of section 104(a)(2). See Bent v. Commissioner, 87 T.C. 236, 251 (1986), affd. 835 F.2d 67 (3d Cir. 1987); State Fish Corp. v. Commissioner, 48 T.C. 465, 476-77 (1967), modified on other grounds 49 T.C. 13 (1967). However, petitioner's reliance on Byrne v. Commissioner, supra, and the accident injury cases is misplaced. The operative factor in these cases is that there is in fact a personal injury and that recovery is made on account of such injury. By contrast, petitioner's loss of employment by the Defendants'Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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