Clarence D. Kightlinger - Page 23

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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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