Arnold Reisman and Ellen Reisman - Page 6




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          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, and               






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