- 10 -
Cir. 1994); Stocks v. Commissioner, supra at 10; Metzger v.
Commissioner, supra at 847. The claim additionally need not have
been asserted prior to the settlement, but lack of knowledge of
the claim on the part of the payor may indicate a lack of intent
to settle such a claim. Gajda v. Commissioner, T.C. Memo. 1997-
345, affd. 158 F.3d 802 (5th Cir. 1998); Brennan v. Commissioner,
T.C. Memo. 1997-317.
The parties here have not addressed whether the claim or
claims underlying the settlement sound in tort. Rather, they
have focused on whether the $30,000 payment was received on
account of physical injury. This emphasis may in large part be
due to the fact that the complaint filed in the District Court
action, which provided a principal impetus for the settlement at
issue, is not in the record. Hence, while the parties stipulated
generally that the complaint alleged a history of discrimination
“based on Title VII of the Civil Rights Act of 1964, as amended”,
it is not possible to ascertain from the evidence what particular
claims Mr. Oyelola may have asserted or whether he advanced a
multiplicity of legal theories.4 In these circumstances, and
4 We note that the Supreme Court in United States v. Burke,
504 U.S. 229, 241 (1992), held that a claim premised on Title VII
of the Civil Rights Act of 1964, prior to its amendment in 1991,
was not based on tort or tort type rights. The Supreme Court
also ruled in Landgraf v. USI Film Prods., 511 U.S. 244, 282, 286
(1994), that the 1991 amendments to Title VII did not apply to
conduct occurring before Nov. 21, 1991. As will be detailed more
fully infra in text, petitioners place significant reliance on an
(continued...)
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