- 6 - rights, and (2) the damages were received on account of personal injuries or sickness. See Commissioner v. Schleier, 515 U.S. 323, 337 (1995). Where amounts are received pursuant to a settlement agreement, the nature of the claim that was the actual basis for settlement and not its validity controls whether such amounts are excludable from gross income under section 104(a)(2). See Seay v. Commissioner, 58 T.C. 32, 37 (1972). “[T]he critical question is in lieu of what was the settlement amount paid?” Bagley v. Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d 393 (8th Cir. 1997). In the instant case, the settlement agreement does not allocate the $350,000 lump-sum payment among petitioners’ various claims, so we will examine the nature of each claim in turn. First, the Federal lawsuit was brought under the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, sec. 2, 81 Stat. 602. Recovery under ADEA is not based upon tort or tort type rights. See Commissioner v. Schleier, supra at 334- 336. Thus, any portion of Mr. Reisman’s claim allocated to the Federal claim would be taxable. Second, in the State action, petitioners sought compensatory and punitive damages for a statutory claim of age discrimination and several common law claims, including invasion of privacy, defamation, intentional infliction of emotional distress, andPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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