-10- language, there is no way to tell for certain that PayLess and its attorneys knew of petitioner’s particular situation. In fact, this could merely be a concession made by PayLess’ attorneys to settle the claim quickly. While this statement benefited petitioner and other plaintiffs for tax purposes, it made no difference to PayLess. Moreover, when analyzing similar release language in a previous case, we held that generic, blanket type statements would not suffice. Jacobs v. Commissioner, supra. Accordingly, petitioner has failed to meet the first requirement under Commissioner v. Schleier, 515 U.S. 323 (1995). An action under the FLSA is not based upon a tort or tort type right. Additionally, petitioner has not shown that her claim for the intentional and/or negligent infliction of emotional distress existed so as to qualify for exclusion of damages under section 104(a)(2). The Nature of the Damages Even if petitioner had shown that her claim of intentional and/or negligent infliction of emotional distress existed, we would still need to consider whether the damages were received on account of that specific claim. Under section 104(a)(2) it is irrelevant that a tort claim existed if PayLess paid damages only for the FLSA claim. For this reason, there must be an actual link between the claim of intentional and/or negligent infliction of emotional distress and the amount paid. Pipitone v. UnitedPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011