T.C. Memo. 1998-4

UNITED STATES TAX COURT

JOHN R. AND SARA E. WISE, Petitioners v

. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6344-96. Filed January 5, 1998.

John A. Mase

, Howard S. Hou , and Mark A. Byrne , for

petitioners.

Mark A. Weiner , for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

JACOBS, Judge : Respondent determined a $283,425 deficiency in

petitioners' 1989 Federal income tax. The sole issue for decision

is whether $1,012,233 received by John R. Wise as a result of the

termination of his employment is excludable from petitioners' 1989- 2 -

gross income pursuant to section 104(a)(2) as damages received on

account of personal injury or sickness.

All section references are to the Internal Revenue Code as in

effect for the year in is sue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The

stipulation of facts and the attached exhibits are incorporated

herein by this reference.

John R. and Sara E. Wise resided in Northridge, California, at

the time the petition was filed. John R. Wise (petitioner) was born

on October 20, 1940.

Weyerhaeuser Co.

In 1968, petitioner began working for Weyerhaeuser Co. (WC) as

a loan officer. WC is in the home-building and mortgage business.

Petitioner later worked for Weyerhaeuser Mortgage Co. (WMC), a WC

subsidiary. Petitioner rose through the ranks at WMC, and by the

late 1980's he became its president a nd chief executive officer.

At that time, WMC was the third or fourth largest mortgage company

in the United States.

Petitioner also served in the late 1980's as chief executive

officer of Republic Federal Savings and Loan (RFSL), another WC

subsidiary, and as chairman of the board of directors of Mortgage

Investments Plus (MI P), a publicly owned real estate investment- 3 -

trust that made investments in commercial real estate. MIP was not

a WC subsidiary but was managed by WC.

During the year in issue, petitioner managed all of WC's

financial service subsidiaries and was responsible for

app roximately 2,000 employees. He was one of the 10 most highly

compensated individuals at WC, earning a base salary of $279,232.56

in 1989. Petitioner did not have a written contract with WMC or

WC.

Although WC policy required that employees rece ive annual

employmen t reviews, petitioner never received such a review.

Nevertheless, he always received bonuses when he became eligible.

Between 1980 and April 1989, John W. Creighton served as

petitioner's immedi ate supervisor. Mr. Creighton and petitioner

were close friends. At the time of trial, Mr. Creighton was the

chief executive officer and chairman of the board of WC.

Within WC's financial services chain of command, petitioner

w as the number 3 person, below George Weyerhaeuser and Mr.

Creighton.

Communications Before Petitioner's Termination

In 1988, petitioner expressed a concern to Mr. Creighton that

because of the developing trend to consolidate in the mortgage

banking industry, there was a strong possibility that WC would

sell WMC, which might then leave petitioner unemployed. In response

to this concern, Mr. Creighton or ally assured petitioner that WC- 4 -

would be "fair" with petitioner if WMC were sold. Petitioner was

not s atisfied with this general assurance; he wanted a long-term

employment contract in writing, with a substant ial severance pay

provision in the event of WMC's sale.

From 1983 to 1989, the value of RFSL's assets increased from

$600 million to $2 billion. Petitioner believed he was primarily

responsible for building and increasing the value of RFSL and of

WMC; therefore he wanted to be adequately compensated in the event

of WMC's sale. Mr. Creighton informed petitioner that a long-term

written employment contract would be forthcoming.

In early 1989, Mr. Weyerhaeuser announced to WC's senior

management that the company had decided t o liquidate its noncore

businesses. WMC and RFSL were part of WC's noncore enterprises.

Mr. Creighton and petitioner continued their discussions

regarding a long-term employment contract for petitioner. On

January 4, 1989, petitioner wrote a letter to Mr. Creighton,

memorializing petitioner's understanding of the proposed employment

contract they had discussed. Petitioner understood that the terms

of the forthcoming contract would i nclude: (1) A provision

entitling petitioner to a $280,000 annual base salary and a

guaranteed incentive bonus of $70,000 annually over a period of 5

years; and (2) a severance package equal to 3 years of salary, or

$1 million, in the event of WMC's sale. Petitioner did not receive- 5 -

1 It appears that Mr. Creighton computed the $560,000

figure by multiplying petitioner's annual salary by two. This

amount was far in excess of the amount called for by WC's formal

severance pay plan. (According to the severance pay plan in

effect at the time, qualified individuals were "eligible to

receive one weeks' [sic] earnings up to a maximum of eight weeks'

earnings, for each year of credited service".) a written response from Mr. Creighton. However, pet itioner was

repeatedly assured he would receive a written contract.

The Termination

On a Friday evening sometime in April 1989, Mr. Creighton

telephoned petitioner to inform petitioner that his employment with

WMC was being terminated effective immediately. Petitioner inquired

as to the amount WC would pay h im in connection with the

termination of his employ ment. Mr. Creighton offered petitioner

approximately $560,000. 1 Petitioner rejected Mr. Creighton's

offer.

The following day Mr. Creighton telephoned petitioner again,

offering approximately $700,000 in connection with the termination

of petitioner's employment. Petitioner rejected this second offer,

suggesting that he would only accept a figure greater than $1

million. Mr. Creighton replied that he would discuss this

counteroffer with Mr. Weyerhaeuser.

On Sund ay, the following day, Mr. Creighton telephoned

petitioner, offering $1,125,000 in connection with the termination

of petitioner's employment. Petitioner accepted this offer.- 6 -

At the time petitioner's employment was t erminated, he had

been employed by WC for approximately 21 years.

Settlement Agreement and General Release

Following petitioner's acceptance of Mr. Creighton's

$1,125,000 offer, attorneys became invo lved in drafting the

settlement agreement. Petitioner's attorney attempted to insert a

statement in the draft agreement that the $1,125,000 payment was in

consideration for tort liabilities. WC's assistant general counsel

specifically refused to acknowledge that WC's $1,125,000 payment to

petitioner was in consideration for any tort liabilities.

On May 16, 1989, petitioner and Mr. Creighton (on WC's behalf)

signed a Settlement Agreement and General Release of All Claims

(General Release). Pursuant to the General Release, petitioner was

paid $1,125,000 in consideration for releasing all potential causes

of action against WC and WMC. In this regard, the General Release

stated:

The Cash Payment shall represent full and

complete satisfaction, settlement and release

by Wise of any a nd all claims he has or may

have against any entity in the Weyerhaeuser

Group, or any director, officer of [sic]

employee of any entity in the Weyerhaeuser

Group for salary, bonus and other incentive

compensation, severance pay or other

compensation based on termination of employment

and accrued and unpaid vacation pay.

* * * * * * *

Wise does as of the Effective Date release

Weyerhaeuser, each subsidiary of Weyerhaeuser,

and each director, officer, employee and agent- 7 -

of Weyerhaeuser and each subsid iary of

Weyerhaeuser, from any and all claims that Wise

has asserted or could assert under federal,

state or municipal laws, executive orders, or

any federal, state or municipal regulations or

rules based on, arising out of, or relating to

his employment by WMC, the termination of such

employment, his service as a director or

officer of any subsidiary of Weyerhaeuser or

the termination of such service, including,

without limitation, claims under age

discrimination laws of the United States or the

State of California, claims of intentional or

negligent injury, and claims for back or future

wages, compensation or benefits , except as

provided for in Section 1 of this Agreement,

claims of right or entitlement to reinstatement

of employment by WMC or any other entity in the

Weyerhaeuser Group as to any position or job

whatsoever, claims of negligent, intentional or

unintentional infliction of emotional distress,

claims b ased on oral or written contracts of

employment, claims based on discrimination laws

of the United States and claims for attorney's

fees and costs, as a prevailing party or

otherwise, and claims for damages for pain and

suffering, personal injury and consequential

damages except for claims based on breach of

this Agreement.

In addition to petitioner's release of all claims against WC,

petitioner agreed to resign from h is position as a director and

officer of MIP. Petitioner also resigned from his position at RFSL.

Pet itioner did not suffer any injury or sickness at the time

he entered into the settlement agreement.

Petitioners' 1989 Federal Income Tax Return

On their 1989 Federal income tax return petitioners included

in income $112,767 of the $1,125,000 settlement payment petitioner

received from WC. (Petitioner arrived at the $112,767 amount by- 8 -

using a 1 week's pay per year of service method.) Petitioners

provided the follow ing explanation on the last page attached to

their return: "Other Disclosure: The taxpayer received 1012233 from

Weyerhaeuser Co. as settlement for mental anxiety and injury to

personal reputation caused upon termination of employment."

Notice of Deficiency

In the notice of deficiency, respondent determined that the

entire $1,125,000 settlement payment petitioner received from WC is

includable in petitioners' 1989 gross income.

OPINION

The sole issue for decision is whether $1,012,233 ($1,125,000

less $112,767) received by petitioner as a result of the termination

of his employment is excludable from petitioners' 1989 gross income

pursuant to section 104(a)(2) a s damages received on account of

personal injury or sic kness. Petitioners argue that they are

entitled to exclude that amount. Respondent disagrees.

Except as otherwise provided, gross income includes income from

all sources. Sec. 61; C ommissioner v. Glenshaw Glass Co.

, 348 U.S.

426, 429-430 (1955) . Although section 61(a) is to be broadly

construed, statutory exclusions from income must be narrowly

construed. C ommissioner v. Schleier

, 515 U.S. 323, 327-328 (1995).

Pursuant to section 1 04(a)(2), gross income does not include

"the am ount of any damages received (whether by suit or agreement

and whether as lump sums or as periodic payments) on account of- 9 -

personal injuries or sickness". The regulations provide that "The

term 'damages recei ved (whether by suit or agreement)' means an

amount received * * * through prosecution of a legal suit or action

based upon tort or tort type righ ts, or through a settlement

agreement entered into in lieu of such prosecutio n." Sec. 1.104-

1(c), Income Tax Regs. Thus, in order to exclude damages from gross

income pursuant to section 104(a)(2), the taxpayer must prove that:

(1) The underlying cause of action is base d upon tort or tortlike

rights, and (2) the damages were received o n account of personal

injuries or sickness. C ommissioner v. Schleier

, supra at 336-337.

Where amounts are received pursuant to a settlement agreement,

the nature of the claim that was the actu al basis for settlement

controls whether such amounts are excludable from gross income under

section 104(a)(2). U nited States v. B urke , 504 U.S. 229, 237

(1992). The crucial question is "in lieu of what was the settlement

amount paid?" B a gley v. Commissioner , 105 T.C. 396, 406 (1995),

affd. 121 F.3d 393 (8 th Cir. 1997). Determining the nature of the

claim is a factual inquiry. R obinson v. Commissioner

, 102 T.C. 116,

127 (1994), affd. in part, revd. in part and remanded 70 F.3d 34

(5th Cir. 1995).

In the instant case, it is unclear that the General Release

included a settlement of petitioner's claims for wrongful

termination rather than a general severance package. But even

assuming arguendo that it did include a settlement for some type of- 10 -

wrongful termination, petitioners are not entitled to exclude from

income any part of the proceeds received.

Petitioners have not proven what portion, if any, of the

$1,125,000 payment was received in settlement of tort or tortlike

claims. The General Release does not make any allocation between

tort (or tortlike) claims and other types of claims. The General

Release identifies many potential claims which could be interpreted

as sounding in contract or in tort. Thus, from the record before

us it is impossible to differentiate the actual basis for

settlement. And failure to show the specific amount of the payment

allocable to the claims of tort or tortlike damages for personal

injuries results in the entire amount's b eing presumed not to be

excludable. See T aggi v. United States

, 35 F.3d 93, 96 (2d Cir.

1994); Getty v. Commissioner

, 91 T.C. 160, 175-176 (1988), affd. on

this issue and revd. on other issues 913 F.2d 1486 (9th Cir. 1990).

Petitioner asserts that the General Release settled his claim

for damages for personal injuries. We do not agree. The General

Release does not state that the amount petitioner received was paid

to settle a potential personal injury claim against WC. And where

a settlement agreem ent lacks express language stating what the

settlement amount was paid to settle, then the most important factor

is the intent of the payor. K nuckles v. Commissioner

, 349 F.2d 610,

612-613 (10th Cir. 1965), affg. T.C. Memo. 1964-33.- 11 -

WC did not iden tify a portion of the payment as a settlement

of a claim on accou nt of a personal injury. The payment herein

appears to be in the nature of taxable severance pay rather than a

payment for personal injury. We believe it is no coincidence that

the settlement payment to petitioner approximates the amount of

severance pay Mr. Creighton and petitioner had discussed as an

essential term in the long-p romised employment contract. (The

settlement amount was slightly over four t imes petitioner's thencurrent base salary.) Severance pay is taxable income. B rennan v.

Commissioner , T.C. Memo. 1997-317.

Undoubtedly, petitioner was affected by WC's actions; however,

he has m a de no showing of any specific tort or personal injury.

Although wrongful employment termination possibly m a y result in

personal injury, the amount of lost wages received in such cases is

generally not linked to that personal i njury, and, thus, such an

award will not qualify for the exclusion from gross income provided

in section 104(a)(2). C ommissioner v. Schleier

, supra at 330. In

this case, there is no link to personal injury.

Petitioner contends that Banks v. United States

, 81 F.3d 874

(9t h Cir. 1996), is controlling. We disagree. In B anks

, the

taxpayer was employed as a steel worker. He was punched by a fellow

employee who was a former boxer, rendering Mr. Banks unconscious and

requiring 32 sti tches to repair a wound to his forehead. The

company attempted to discharge Mr. Banks and his fellow employee for- 12 -

fighting. The union filed a grievance on Mr. Banks' behalf and

subsequently settled the matter; Mr. Banks objected to the terms of

the agreement. He then sued the union for breach of its duty of

fair rep resentation. Mr. Banks prevailed on that cause of action

in the district court and agreed to settle with the union before the

entry of judgment.

Mr. Banks did not report as income the amount he received from

the union, and after examination and assessment, he paid the tax and

sued for a refund. He prevailed in the District Court, where the

court held that the settlement was of a tortlike cause of action and

the sum paid for the breach of duty of fair representation was on

account of personal injuries within the meaning of section

104(a)(2). B anks v. United States

, 94-2 USTC par. 50,630 (W.D.

Wash. 1994). The U.S. Court of Appeals for the Ninth Circuit

affirmed, noting that "Unions do not pay wages to their members, and

what the Union paid in settlement here to Banks did not constitute

wages." 81 F.3d at 876.

I n this case, the $1,125,000 settlement payment compensated

petitioner for his 21 years of past se rvice in building the value

of WMC and related entities, as well as for his amicable severance

of employment from WC generally. See, e.g., B ritell v.

Commissioner

, T.C. Memo. 1995-264. Petitioner has not demonstrated

what injuries he had or might have had as a resul t of his

termination. Petitioner did not testify as to why he believed he- 13 -

was terminated. Indeed, he simply failed to present any evidence

that the settlement he received included a settlement of a tortlike

cause of action on account of personal injuries or sickness.

We have considered all of petitioners' other arguments and, to

the extent not discussed above, find them to be without merit.

In s um, the entire $1,125,000 settlement payment petitioner

received is includable in petitioners' 1989 gross income.

To reflect the foregoing,

Decision will be entered

for respondent

.