William J. Broedel and Joan C. Broedel - Page 11




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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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