- 12 - the other provisions of the agreement that quite clearly indicate and establish that the settlement was intended to satisfy the claims made in the class action. Such language relied on by petitioner in the Settlement Agreement, therefore, can be ignored. See Peaco v. Commissioner, T.C. Memo. 2000-122. An express allocation, such as petitioner relies on, may be disregarded if the facts and circumstances surrounding a payment, such as exists in this case, indicate that the payment was intended by the parties to be for a different purpose. See Bagley v. Commissioner, supra; Robinson v. Commissioner, supra; Threlkeld v. Commissioner, 87 T.C. 1294, 1307 (1986), affd. 848 F.2d 81 (6th Cir. 1988); Burditt v. Commissioner, T.C. Memo. 1999-117. The Court, therefore, finds that the amounts awarded to petitioner were for back pay and liquidated damages under the Fair Labor Standards Act pursuant to the class action initiated by the former employees of PayLess. As such, the amount paid to petitioner constituted gross income, and such amount is not excludable under section 104(a)(2). See Commissioner v. Schleier, supra. Respondent, therefore, is sustained. Reviewed and adopted as the report of the Small Tax Case Division. In order to present petitioner's claim to relief fromPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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