No. 97-60732 Summary Calendar.

158 F.3d 802 (1998)

Joseph J. GAJDA and Lillian A. Gajda, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Fifth Circuit.

August 7, 1998.

Attorney(s) appearing for the Case

Leonard L. Leighton, Leighton & Leighton, San Antonio, TX, for Petitioners-Appellants.

Sarah Kay Knutson, Loretta Argrett, Asst. Atty. Gen., Kenneth L. Greene, U.S. Dept. of Justice, Tax Div., Appellate Section, Charles Casazza, Clerk, U.S. Tax Court, Stuart L. Brown, Chief Counsel, IRS, Washington, DC, for Respondent-Appellee.

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...

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