Richard and Margaret Sherman - Page 15




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               The United States Court of Appeals for the Second Circuit,             
          where an appeal in this case would lie, held in Taggi v. United             
          States, 35 F.3d at 96, that failure to show the amount of a payment         
          allocable to claims of tort or tort type damages for personal               
          injuries results in the entire amount being presumed not to be              
          excludable.  See Pipitone v. United States, ___ F.3d ___ (7th Cir.,         
          June 14, 1999); see also Getty v. Commissioner, 91 T.C. 160, 175-           
          176 (1988), affd. as to this issue and revd. on other issues 913            
          F.2d 1486 (9th Cir. 1990); Morabito v. Commissioner, T.C. Memo.             
          1997-315.  As in Taggi, the release in this case is all-                    
          encompassing and includes different potential tort and nontort              
          claims.  As stated, no part of the payment was allocated to any one         
          cause of action.  And, petitioner has not proven which portion, if          
          any, of the $207,000 was received in settlement of tort or tort             
          type claims of personal injury.  Thus, assuming petitioner                  
          sustained a personal injury as a consequence of IBM's termination           
          of his employment, the record reflects no basis for an allocation,          
          and, we are not in a position to apportion the payment among the            
          various possible tort and nontort claims enumerated in the                  
          settlement agreement.  See, e.g., Adams v. Commissioner, T.C. Memo.         
          1997-357; Morabito v. Commissioner, supra.                                  
               We have considered all of petitioners' other arguments and, to         
          the extent not discussed above, find them to be without merit.              







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