William J. Broedel and Joan C. Broedel - Page 15




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          from gross income under section 104(a)(2).  The relevant inquiry            
          is whether the claim is based upon tort or tort type rights and             
          the damages received are on account of personal injuries or                 
          sickness.  See Commissioner v. Schleier, 515 U.S. at 337.                   
          Furthermore, neither the Internal Revenue Service nor any other             
          agency of the United States consented to a settlement agreement             
          awarding Mr. Broedel “tax free” payments.                                   
               The amount paid to Mr. Broedel under the settlement                    
          agreement was equal to one and one-half times his annual salary.            
          The evidence in the record indicates that SUNY’s intent in                  
          settling with Mr. Broedel was to induce his retirement and effect           
          the withdrawal of any and all complaints against SUNY.  As we               
          stated earlier, Mr. Broedel’s complaint filed with the NYSDHR               
          included various claims.  Not all of these claims were based upon           
          tort or tort type rights.  The settlement agreement did not                 
          allocate the payments among his claims, and petitioners have                
          failed to establish what portion, if any, was paid on account of            
          personal injuries or sickness arising from tort or tort type                
          rights.  Indeed, the fact that the amount of $58,372.50 was based           
          on the amount Mr. Broedel would have received had he continued              
          working another year and a half points in the direction of                  
          payment for reasons other than personal injury or sickness.  See,           
          e.g., Bland v. Commissioner, T.C. Memo. 2000-98; Morabito v.                
          Commissioner, supra; Sodoma v. Commissioner, supra; Webb v.                 






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