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336. Thus, any portion of Mr. Broedel’s claim allocated to
violations under the ADEA would be taxable.
Respondent concedes that Mr. Broedel’s complaint with the
NYSDHR alleging that he was the victim of age and disability
discrimination prohibited by New York State law is based upon
tort or tort type rights. However, respondent argues that
petitioners have failed to show that the settlement proceeds were
received on the account of personal injury or sickness.
Petitioners claim that Mr. Broedel had a bona fide claim against
SUNY under the ADA for infliction of emotional distress.
Although the complaint fails to indicate that a claim under the
ADA was being made, it does allege discrimination because of
disability. To the extent a claim was made under the ADA,
respondent concedes that such a claim sounds in tort. See, e.g.,
Phillips v. Commissioner, T.C. Memo. 1997-336 (finding that, for
purposes of the motion before the Court, the taxpayer had
established that a claim for relief under the ADA was based on a
tort type cause of action).
In order to exclude any portion of the $58,372.50 under
section 104(a)(2), petitioners must show that the payments were
received on account of personal injuries or sickness, and they
must establish what portion of the payments, if any, was paid on
account of personal injuries or sickness arising from tort or
tort type rights. Generally, when a settlement agreement deals
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