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taxpayer. Central Foundry Co. addressed whether a corporation
could deduct the reimbursement of shareholders’ expenses from a
successful proxy fight as ordinary and necessary business
expenses. The Court stated that no matter which remedy the
shareholder selected, a derivative action or a proxy contest, it
was the proximate relationship to the corporation and the benefit
to the corporation that determined whether the expenses were
deductible. Central Foundry Co., however, has not been relied
upon by this Court, or any other court, for guidance in
determining whether recoveries by taxpayers are excludable from
gross income under section 104(a)(2). Thus, we do not view
Central Foundry Co. as persuasive support for petitioner’s
position that the focus should be on the legislative policy
underlying title VII rather than the possible remedies available
to claimants.
More important, however, is the fact that the Supreme Court
did not follow the dissent’s view in Burke and held that a claim
under title VII is not based on a “tort or tort type” right,
taking account of the kinds of remedies that may be awarded for
that claim. United States v. Burke, supra at 234-237. Because
pre-1991 title VII remedies were limited to backpay and
injunctive relief, the Court held that a sex discrimination claim
did not assert a “tort or tort type” right. Regardless of
whether petitioner’s claims may have had an analogue at common
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