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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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