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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'
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