79 F.3d 1148
77 A.F.T.R.2d 96-665, 96-1 USTC  P 50,159
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Walter B. FITE;  Agnes Fite, Petitioners-Appellees Cross-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant Cross-Appellee.
Nos. 94-2057, 94-2217.
United States Court of Appeals, Sixth Circuit.
Dec. 26, 1995.

Before:  KENNEDY, WELLFORD, and SILER, Circuit Judges.

ORDER

1
The Commissioner of Internal Revenue appeals from a Tax Court decision holding that petitioners Walter B. Fite and Agnes Fite were entitled to exclude damages, attorney fees and costs awarded under the Age Discrimination in Employment Act (ADEA) from their gross income pursuant to Section 104(a)(2) of the Internal Revenue Code.   That appeal is docketed as Case No. 94-2057.   Walter Fite cross-appeals in Case No. 94-2217 from that portion of the decision which found that the Fites were not entitled to an award of litigation and administrative costs and fees.   The Commissioner has filed a brief which contains a waiver of oral argument.   Fite has directed his attorney not to file a brief on his behalf and has waived oral argument.   These cases have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.   Upon examination, this panel unanimously agrees that oral argument is not needed.   Fed.R.App.P. 34(a).


2
After entry of the Tax Court's decision, the Supreme Court in C.I.R. v. Schleier, 115 S.Ct. 2159 (1995), held that back pay and liquidated damage awards in ADEA cases are not excludable from gross income under § 104(a)(2).   Thus, the Fites were not entitled to exclude damages, attorney fees and costs awarded under the ADEA from their gross income.   We therefore REVERSE the decision in favor of the taxpayers and REMAND with instructions for the Tax Court to enter judgment for the Commissioner.   Fite's cross-appeal in Case No. 94-2217 is DISMISSED for want of prosecution.   Rule 9(b)(3), Rules of the Sixth Circuit.

