324
Opinion of the Court
(c) Nor is respondent's recovery based upon "tort or tort type rights" as that term was construed in United States v. Burke, 504 U. S. 229, where this Court rejected the argument that a taxpayer's backpay settlement under the pre-1991 Title VII of the Civil Rights Act of 1964 should be excluded from gross income. Two elements that distinguish the ADEA from the pre-1991 Title VII—namely, the ADEA rights to a jury trial and liquidated damages—are insufficient to bring the ADEA within Burke's conception of a "tort or tort type righ[t]," for the statute lacks the primary characteristic of such an action: the availability of compensatory damages. Moreover, satisfaction of Burke's "tort or tort type" inquiry does not eliminate the need to satisfy the other requirement for excludability discussed herein. Pp. 334-336.
26 F. 3d 1119, reversed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Ginsburg, and Breyer, JJ., joined. Scalia, J., concurred in the judgment. O'Connor, J., filed a dissenting opinion, in which Thomas, J., joined, and in Part II of which Souter, J., joined, post, p. 337.
Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, and Ann B. Durney.
Thomas F. Joyce argued the cause for respondents. With him on the brief were Alan M. Serwer and Raymond C. Fay.*
Justice Stevens delivered the opinion of the Court.
The question presented is whether § 104(a)(2) of the Internal Revenue Code authorizes a taxpayer to exclude from his
*Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Douglas S. McDowell, Ann Elizabeth Reesman, and Kimberly L. Japinga; for the Migrant Legal Action Program, Inc., by Collette C. Goodman, Julie M. Edmond, and Robert B. Wasserman; and for the Pan Am Pilots Tax Group by Sanford Jay Rosen and Thomas Nolan.
Cathy Ventrell-Monsees and L. Steven Platt filed a brief for the American Association of Retired Persons et al. as amici curiae.
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