Jones v. CIR ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 5 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT P. JONES and DONNA M.
JONES,
Petitioners,
v. No. 96-9014
(Docket No. 5043-94)
COMMISSIONER OF INTERNAL (United States Tax Court)
REVENUE,
Respondent.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered
submitted without oral argument.
Petitioners Robert P. Jones and Donna M. Jones, appearing pro se, appeal the Tax
Court's decision that monies Robert Jones received in settlement of an Age
Discrimination in Employment Act claim, 29 U.S.C. § 621 et seq., are taxable and not
excludable from taxable income under 26 U.S.C. § 104(a)(2).
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
This issue was resolved in Commissioner v. Schleier, 115 S. Ct. 2159 (1995). In
Schleier, the Supreme Court held there are two independent requirements a taxpayer must
meet before a recovery is excludable under § 104(a)(2): "First, the taxpayer must
demonstrate that the underlying cause of action giving rise to the recovery is 'based upon
tort or tort type rights'; and second, the taxpayer must show that the damages were
received 'on account of personal injuries or sickness.'" 115 S. Ct. at 2167. The Court
held a settlement under the Age Discrimination in Employment Act does not satisfy either
requirement and no part of the settlement was excludable under § 104(a)(2). See Gray v.
Commissioner, 104 F.3d 1226, 1227 (10th Cir. 1997).
The judgment of the Tax Court is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-2-