Ronald W. Ramey and Joni J. Ramey - Page 11




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          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. United              




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