Taylor Miller - Page 11




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          lawsuit was governed by the 1991 amendments to the Civil Rights             
          Act.3                                                                       
               Any uncertainty about the significance in discrimination               
          cases of the 1991 amendments to the Civil Rights Act was laid to            
          rest by the Supreme Court’s opinion in Commissioner v. Schleier,            
          515 U.S. 323 (1995), published June 14, 1995.  Schleier held that           
          awards under the Age Discrimination in Employment Act (ADEA) were           
          taxable not only because the ADEA, like the pre-1991 version of             
          the Civil Rights Act, does not satisfy the requirement of tort-             
          like injury, but also because the claim must be “on account of              
          personal injuries or sickness”, and that termination on account             
          of age could not “fairly be described as a ‘personal injury’ or             
          ‘sickness.’” Id. at 330.  Thus, the second ground of Schleier               



               3 If respondent accepted petitioner’s argument to this                 
          effect, relying on the holding of the Court of Appeals for the              
          Ninth Circuit in Davis v. City of San Francisco, 976 F.2d 1536              
          (9th Cir. 1992) (cited by petitioner’s counsel in his memo of               
          April 8, 1994), that the provisions of the Civil Rights Act of              
          1991, Pub. L. 90-202, 81 Stat. 602, governing expert witness fees           
          applied retroactively, it turned out that respondent was                    
          mistaken.  The amendments made by the Civil Rights Act of 1991,             
          which provided for additional relief of compensatory and punitive           
          damages as well as back pay, and for a jury trial, were                     
          subsequently held not to apply retroactively.  See Landgraf v.              
          USI Films Prods., 511 U.S. 244, 249, 256, 286 (1994).  Thus,                
          respondent should have considered petitioner’s claim in the light           
          of the pre-1991 version of the Act under which she made claim,              
          which arose in 1977.  See Clark v. Commissioner, T.C. Memo. 1997-           
          156.  Since United States v. Burke, 504 U.S. 229 (1992), held               
          that sec. 104(a)(2) did not apply to a settlement award under               
          Title VII of the 1964 Act, Burke was governing authority for                
          inclusion of petitioner’s settlement in gross income.                       





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