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of the claim is a factual inquiry. See Robinson v. Commissioner,
102 T.C. 116, 127 (1994), affd. in part, revd. in part on another
ground and remanded 70 F.3d 34 (5th Cir. 1995).
In the statement appended to their 1993 return, petitioners
state that the $207,000 payment from IBM was in exchange for
petitioner's "release [of] all claims for age discrimination,
including those available pursuant to title VII of the Civil Rights
Act." Subsequent to the filing of petitioner's 1993 return, the
Supreme Court in Commissioner v. Schleier, supra, in resolving a
conflict among the circuits, held that back pay and liquidated
damages recovered for age discrimination under the Age
Discrimination in Employment Act of 1967, Pub. L. 90-202, 81 Stat.
602, currently codified at 29 U.S.C. secs. 621-634 (1994), are not
excludable from gross income under section 104(a)(2) because (1)
the statute does not sound in tort, and (2) no part of the recovery
is received on account of personal injuries or sickness. (We note
that several years prior to rendering its opinion in Schleier, the
Supreme Court in United States v. Burke, supra, held that back pay
awarded in settlement of title VII claims is not excludable from
gross income under section 104(a)(2).)
In their petition that was filed after the Supreme Court
rendered its opinion in Schleier, petitioners assert that the
$207,000 payment was solely in settlement of petitioner's claim for
physical and mental injury. They claim that petitioner had a cause
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