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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

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