Ronald W. Ramey and Joni J. Ramey - Page 8




                                         -7-                                          
          2000-59.                                                                    
          The Nature of the Claim                                                     
               First we consider whether the claim settled was based upon a           
          tort or tort type cause of action.  From the record before us, we           
          consider the evidence, the stipulated facts, the complaint, and             
          the intent of the payor.  Threlkeld v. Commissioner, 87 T.C.                
          1294, 1306 (1986), affd. 848 F.2d 81 (6th Cir. 1988); Bent v.               
          Commissioner, 87 T.C. 236, 245 (1986), affd. 835 F.2d 67 (3d Cir.           
          1987); Church v. Commissioner, 80 T.C. 1104, 1107 (1983).                   
               There is no dispute that the 1993 complaint arose under the            
          FLSA to recover unpaid overtime compensation, liquidated damages,           
          attorney’s fees and costs.  It is well settled that an action               
          under the FLSA, in and of itself, is not based upon a tort or               
          tort type right.  See Jacobs v. Commissioner, supra.  The FLSA              
          was enacted to establish minimum wages and maximum hours for                
          employees and it does not provide for personal injury                       
          compensation.  See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,              
          707 (1945); Jacobs v. Commissioner, supra.  The only relief                 
          available under the FLSA is the payment of back wages and                   
          liquidated damages for excessive hours worked.  See 29 U.S.C.               


          235 n.6 (1992).  But see Small Business Job Protection Act of               
          1996, Pub. L. 104-188, sec. 1605(a), 110 Stat. 1838, which                  
          amended sec. 104(a)(2) to provide that for amounts received after           
          Aug. 20, 1996, a “personal injury” is limited to a physical                 
          injury.  On the other hand, an economic injury includes injuries            
          such as those arising out of the unlawful deprivation of either             
          full wages earned or the opportunity to earn them.  Id.                     




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