               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT
                          _______________

                            No. 97-60732
                         Summary Calendar
                          _______________



              JOSEPH J. GAJDA and LILLIAN A. GAJDA,

                                           Petitioners-Appellants,

                               VERSUS

                 COMMISSIONER OF INTERNAL REVENUE,

                                           Respondent-Appellee.


                     _________________________

                     Appeal from a Decision of
                    the United States Tax Court
                     _________________________

                          August 7, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*



     Joseph Gajda, who files tax returns jointly with his wife

Lillian Gajda, appeals the Tax Court’s summary judgment on Joseph’s

claim that $91,690 of income received upon his resignation from

employment constituted payment on account of sickness or personal

injury excludable under section 104(a)(2) of the Internal Revenue

Code.   Because the pleadings demonstrate that the employer offered
the payment in lieu of damages and not to settle a claim for

personal injury, we affirm.



                                  A.

       Gajda was an engineer employed with International Business

Machines Corp. (“IBM”) for thirty-two years.       At some point in

1993, he became eligible to participate in IBM’s Modified and

Extended Individual Transition Option Program (“ITO II”), which had

been   implemented as part of IBM’s effort to reduce the size of its

workforce and was offered to all employees who met certain age and

job category requirements.

       Under the voluntary program, employees could choose to accept

a lump-sum payment in return for their voluntary resignation and

release of all potential claims against IBM arising out of their

employment or its termination. The agreement provided, in relevant

part, that Gajda agreed

       to release International Business Machines corporation
       (hereinafter, IBM), from all claims, demands, actions or
       liabilities you may have against IBM of whatever kind,
       including but not limited to those which are related to
       your employment with IBM or the termination of that
       employment. You agree this also releases from liability
       IBM’s    agents,    directors,    officers,    employees,
       representatives, successors and assigns (hereinafter
       “those associated with IBM”). You agree that you have
       executed this release on your own behalf, and also on
       behalf of any heirs, agents, representatives, successors
       and assigns that you may have now or in the future. You
       also agree that this release covers but is not limited to
       claims arising from the Age Discrimination in Employment
       Act of 1967, as amended, Title VII of the Civil Rights
       Act of 1964, as amended, and any other federal or state
       law dealing with discrimination in employment on the

                                  2
     basis of sex, race, national origin, religion, disability
     or age. You also agree that this release includes claims
     based on theories of contract or tort, whether based on
     common law or otherwise.

     ...

          1. The benefits provided pursuant to the ITO Program
     constitute consideration for this release, in that these
     are benefits to which you would not have been entitled
     had you not signed the release.

     ...

     3. This release does not waive any claims which you may
     have that arise after the date you sign this release.

     ...

     6. In the event of a rehire by IBM or any of its
     subsidiaries as a regular employee, you understand that
     IBM reserves the right to require repayment of a prorated
     portion of the ITO II Program payment. The amount of the
     repayment will be based on the number of weeks off the
     IBM payroll compared with the number of weeks salary used
     to calculate your payment.


     Gajda claims that he was pressured into resigning, but he did

not complain of this or of anything else to company officers,

despite a clause in the contract suggesting that employees consider

the offer carefully, consult with their attorneys, and discuss any

tort claims with the company.1              He signed the release in 1993,


     1
         The relevant portion of the release agreement read as follows:

             IBM ADVISES YOU TO CONSULT AN ATTORNEY BEFORE YOU SIGN THIS
             RELEASE

             If you feel that you are being coerced to sign this release or
             that your signing would for any reason not be voluntary, or
             you believe the process by which you have been offered this
             release or the payment in exchange for this release is
             discriminatory, you are encouraged to discuss this with your
                                                               (continued...)

                                        3
apparently without doing any of these things, although he was given

at least forty-five days to consider the offer.          He received a lump

sum special incentive payment of $91,690 calculated, like other

ITO II payments, on the basis of his years of service and rate of

pay.     IBM withheld federal income, social security, and Medicare

taxes.     After these events occurred, Gajda fell into a deep

depression and sought treatment from three doctors.

       When he filed his 1993 income tax return, Gajda excluded the

special incentive payment from gross income.                 He claimed on a

Form 8275, “Disclosure Statement,” that the income was a payment

for “age discrimination and other potential tort claims” excludable

from income under 26 U.S.C. § 104(a)(2) as a payment on account of

sickness    or   personal    injury.       The    Commissioner   assessed     a

deficiency of $33,343.

       Gajda joined a suit with seventeen other taxpayers who had

received early retirement payments from IBM. Because most of those

taxpayers,    unlike   Gajda,   had    suffered    nothing    that   might   be

interpreted as “personal injury” for which they might have had a

claim against IBM, the Tax Court severed Gajda’s case.


(...continued)
            management or Personnel before signing this release. After
            reviewing the release with your attorney, you can discuss
            concerns you have with your manager or your attorney can
            contact legal counsel at your location. You should thoroughly
            review and understand the effects of the release before
            signing it.

A footnote accompanying this paragraph described the potential discrimination
claims an employee might have, including claims under the ADEA and state and
local law.

                                       4
     The    Tax    Court    granted      summary    judgment        in    favor     of   the

Commissioner,      noting    that     the       intent   of   the        employer     would

determine    the    treatment       of    the     payment.          See    Knuckles       v.

Commissioner, 349 F.2d 610, 612 (10th Cir. 1965).                         It found that

the payment was in the nature of severance pay rather than of

compensation for personal injury, because Gajda had not asserted

any claim at the time he signed the release, because the release

was a standard document offered to all employees, because the

amount of the payment was calculated based on Gajda’s salary and

number of years of service, and because the agreement required

repayment of a pro rata portion of the incentive payment depending

on the employee’s length of time between the resignation and the

rehire.     Finally, the Tax Court noted that the release makes no

attempt to allocate the payment between severance pay and personal

injuries, and that Gajda had offered no facts upon which an

allocation could be based.



                                          B.

     Summary judgment is appropriate “if the pleadings, answers to

interrogatories, depositions, admissions, and any other acceptable

materials, together with the affidavits, if any show that there is

no genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”             TAX COURT RULES     OF   PRACTICE   AND   PROCEDURE

121(b). The moving party bears the burden of proving that there is


                                            5
no genuine issue of material fact, and factual inferences are

viewed in the light most favorable to the nonmovant.                       United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962).                         The opposing party

cannot rest upon mere allegations or denials, but must set forth

specific facts showing there is a genuine issue for trial.                                TAX

COURT RULES   OF   PRACTICE   AND   PROCEDURE 121(d).

     Gajda argues that IBM’s intent is a question of fact and that

the aspects of the agreement noted by the Tax Court do not prove

that IBM intended these payments solely as severance pay.                               Gajda

does not meet his burden of providing specific facts showing there

is a genuine issue of fact for trial, however.

     Gajda is correct that the factors considered by the Tax Court

do not conclusively demonstrate that IBM intended the payment as

severance pay in the face of evidence to the contrary.                            For such

evidence      to    the     contrary,      however,       Gajda     provides    only     the

irrelevant         evidence         of   his   subsequent         depression      and    his

unsubstantiated           allegations      that     IBM    forced    him   to   sign     the

agreement.          These     allegations      do    not    contradict      the    obvious

conclusion from the language of the agreement, the nature of the

program, and the calculation of the payment itself, that IBM

intended the payment as compensation of wages lost upon early

retirement and not to settle personal injury claims.

     Gajda’s case presents no novel issues.                           In Webb v. Com-

missioner, 71 T.C.M. (CCH) 2004 (1996), the Tax Court considered


                                               6
almost identical facts: A taxpayer who retired early under the IBM

ITO program, suffered mental anguish after the resignation, and

then claimed for the first time that he signed the release under

protest.      The Tax Court characterized the payment as severance,

noting that under the taxpayer’s description of the facts, “the

Release itself was the cause of the injury.”              Id.    The Tax Court

also cited the same factors it considered in the instant case.

      Gajda’s claim suffers the same defects. Like the plaintiff in

Webb, Gajda essentially argues that he has an ADEA or emotional

distress claim based on the fact that IBM forced him to resign and

sign the release.2         Because the wrongful act leading to his

subsequent depression did not occur prior to the signing of the

release, the simultaneous special incentive payment could not have

been made to resolve an existing claim for personal injury.

      Under    Gajda’s   argument,    the   mere   fact   that    IBM   foresaw

lawsuits arising out of the ITO II program meant that the payment

was in part a settlement of those potential future claims.                This

argument is contradicted by Taggi v. United States, 35 F.3d 93, 96-

97 (2d Cir. 1994).

      In Taggi, the taxpayer took early retirement under an AT&T

program that offered two incentive payment options. Under one, the



     2
       Damages under the ADEA are not excludable under § 104(a)(2) because they
compensate lost wages and impose punitive damages, but do not contain an
emotional distress or other personal injury component. Commissioner v. Schleier,
515 U.S. 323, 326 (1995). Accordingly, Gajda’s payment could only be excluded
to the extent it settled a potential state-law emotional distress claim.

                                       7
taxpayer    would     have   received   three    percent      of    his     base    pay

multiplied by the number of years he had worked at AT&T.                    Under the

second, he would receive five percent.                 To receive the higher

payment, he had to sign a Separation Agreement and Release, which

claimed to be a “full legal release.”                  Id. at 94.           After he

resigned, he attempted to bring a claim under the ADEA.                     When this

claim was dismissed because of the Separation Agreement, the

taxpayer made a refund claim asking that the incentive payment be

treated as a payment for personal injury under § 104(a)(2).

     Although Taggi’s claim was much stronger than Gajda’s, the

court denied § 104(a)(2) treatment.               Id. at 96-97.             It cited

26 C.F.R. § 1.104-1(c), which provides that damages received on

account    of    personal    injuries   or    sickness      are    those    received

“through prosecution of a legal suit or action based upon tort or

tort type rights, or through a settlement agreement entered into in

lieu of such prosecution.”           The court noted that exclusions from

income    are    to   be   defined   narrowly    and   that       parties    must    be

prohibited from creating contrived “settlement agreements” to avoid

taxation of the proceeds.            In order to prevent such contrived

settlements, the courts must require the presence of an actual

dispute.    If § 104(a)(2) were construed to encompass releases of

potential       unspecified    future       claims,    as    Gajda     recommends,

manufacturing § 104(a)(2) tax treatment would be simple.

     While the parameters for § 104(a)(2) treatment remain somewhat


                                        8
undefined,   Gajda’s   case   obviously   does   not   fit   within   them.

Because Gajda has alleged no facts to contradict IBM’s obvious

intent to provide severance pay, the decision of the Tax Court is

AFFIRMED.




                                   9
