T.C. Memo. 1997-549

UNITED STATES TAX COURT

HARRY NEAL BALL AND HELEN PATRICIA BALL, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4063-97. Filed December 15, 1997.

Harry N. Ball and Helen P. Ball, pro sese.

Elizabeth A. Owen, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

FOLEY, Judge: Respondent determined a $1,710 deficiency in

petitioners' 1994 Federal income tax. After concessions, the

issue for decision is whether petitioners, pursuant to section

104(a)(2), are entitled to exclude from gross income $8,705.59 in

separation payments. We hold that they are not. All section
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references are to the Internal Revenue Code in effect for the

year in issue.

FINDINGS OF FACT

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

Petitioners resided in El Paso, Texas, at the time their petition

was filed.

Prior to 1994, Helen Ball was employed by Revlon Government

Sales, Inc. (Revlon). On December 7, 1993, Revlon terminated Ms.

Ball's employment, and on December 9, 1993, Ms. Ball executed a

separation agreement in full bargained-for release and settlement

of any and all claims arising from her employment with and

termination from Revlon. The agreement provided, in pertinent

part, as follows:

EXTENT OF RELEASE. This agreement is valid

whether any claim arises under any federal, state or

local statute (including, without limitation, Title VII

of the Civil Rights Act of 1964, the Age Discrimination

in Employment Act of 1967, the Equal Pay Act, the

Americans with Disabilities Act of 1990, the Employee

Retirement Income Security Act of 1974, the Family and

Medical Leave Act of 1933 [sic], the New York State

Human Rights Law, The New York City Administrative

Code, and all other statutes regulating the terms and

conditions of my employment), regulation or ordinance,

under the common law or in equity (including any claims

for wrongful discharge or otherwise), or under any

policy, agreement, understanding or promise, written or

oral, formal or informal, between the Company and

myself.

The agreement further provided that Ms. Ball was entitled to 4

months of separation pay and 4 months of severance pay (i.e., a
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total of $18,466.72). At the time she executed the agreement,

Ms. Ball did not have any pending complaints against Revlon.

Petitioners filed in a timely manner their 1994 Federal

income tax return. On the return, petitioners: (1) Reported

wage income of $8,705.59; (2) attached a Form W-2 which reported

that Ms. Ball received $17,411.18 in "wages, tips, other

compensation" from Revlon; and (3) attached copies of the

separation and release agreement to support their position that

one-half (i.e., $8,705.59) of the $17,411.18 reported on the Form

W-2 was excludable from gross income pursuant to section

104(a)(2). On November 27, 1996, respondent issued petitioners a

notice of deficiency in which respondent determined that

petitioners were not entitled to the claimed exclusion.

OPINION

Section 104(a)(2) excludes from gross income "the amount of

any damages received (whether by suit or agreement and whether as

lump sums or as periodic payments) on account of personal

injuries or sickness". An award of damages may be excluded from

gross income only when it is received both: (1) Through

prosecution or settlement of an action based upon tort or tort

type rights and (2) on account of personal injuries or sickness. 

Commissioner v. Schleier, 515 U.S. 323, 333-334 (1995). 

Petitioners did not present any evidence to establish that

the agreement settled an action based upon tort type rights. Ms.
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Ball never asserted a claim for personal injuries (or any other

claim) against Revlon. See Glynn v. Commissioner, 76 T.C. 116,

121 (1981) (stating "Here, no claim for personal injury was ever

made."), affd. without published opinion 676 F.2d 682 (1st Cir.

1982). Moreover, petitioners did not establish that the amounts

received were intended to compensate for a tort claim relating to

personal injuries sustained by Ms. Ball. To the contrary, the

agreement encompassed any claim arising "under any federal, state

or local statute * * *, regulation or ordinance, under the common

law or in equity * * *, or under any policy, agreement,

understanding, or promise, written or oral, formal or informal,

between" Revlon and Ms. Ball. Thus, the agreement contained a

general release which encompassed a wide variety of potential

tort and contract claims. Therefore, petitioners have failed to

establish that the payments were received on account of personal

injuries and were attributable to a claim based on tort or tort

type rights. Accordingly, we hold that the $8,705.59 is not

excludable from petitioners' gross income.

All other arguments made by the parties are either

irrelevant or without merit.

To reflect concessions,

Decision will be entered

for respondent.