ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASEThis matter is before me pursuant to S.C. Code Ann. § 12-60-460 (2000) upon Petitioner's (Taxpayer)
request for a contested case hearing to review a Final Agency Determination issued by the Respondent, South
Carolina Department of Revenue (Department or DOR). The Final Agency Determination denied Taxpayer's
claim for a refund and assessed additional tax for the 1998 tax year. Petitioner contends that settlements of
$5,000 and $400,000 reached with the United States Postal Service (USPS or Postal Service) arising out of
Merit System Protection Board and Equal Employment Opportunity claims were on account of personal and
physical injury or sickness, and therefore he is entitled to a refund for state taxes withheld of $19,707.
Further, he contends that he is not subject to the additional assessment of $8,981 by the Department to cover
his purported 1998 tax liability. The Department has also assessed interest of $1,548.08 and a penalty of
$1,032.82. Hence, the total amount in dispute is $31,268.90.
Taxpayer exhausted his pre-hearing remedies pursuant to S.C. Code Ann. § 12-60-450 (2000). After notice
to the parties, a hearing was conducted at the Administrative Law Judge Division on July 12, 2001. Based
upon the evidence presented, I find and conclude that the settlement money received by Taxpayer from his
employer was not on account of personal physical injury or personal physical sickness. Therefore, the money
received is taxable and should have been included as income on Taxpayer's 1998 state income tax return. I
further find and conclude that any penalties should be waived. Any issues raised in the proceedings, but not
addressed in this Order, are deemed denied pursuant to ALJD Rule 29(C).
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and
taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a
preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to Taxpayer and the
Department.
2. Taxpayer was employed with the United States Postal Service as a customer service supervisor.
3. Between 1993 and 1998, Taxpayer filed 28 Equal Employment Opportunity (EEO) claims and three Merit
Selection Protection Board (MSPB) claims against the Postal Service. The MSPB claims alleged that
Taxpayer had been wrongfully demoted and wrongfully placed on leave without pay. The EEO actions
contained allegations of discrimination based upon retaliation, race, sex, age, disability, and harassment.
4. In some of the EEO and MSPB actions, Taxpayer alleged that he experienced high levels of anxiety
resulting in chest pains and high blood pressure as a result of the actions of Postal Service employees.
5. In case number AT-0752-95-1205-I-1, the MSPB found that Taxpayer had been wrongfully demoted and
remanded the case to the MSPB Atlanta Region.
6. In case number AT-0752-95-0733-I-1, the MSPB required the Postal Service to pay Taxpayer back
pay for the time he was placed on leave without pay.
7. Prior to a hearing on remand for the wrongful demotion, the parties entered into settlement negotiations.
8. On July 31, 1998, The Honorable Richard Vitaris, Administrative Judge for the MSPB, issued an order
providing the Postal Service with the opportunity to make an offer of judgment.
9. Thereafter, Taxpayer negotiated settlements of his claims, whereby he was paid $5,000.00 and $400,000.00
in return for withdrawing all MSPB and EEO claims against the Postal Service. The agreement reached in
the $5,000.00 settlement was memorialized in the transcript of an October 8, 1998, hearing. The $400,000.00
settlement was a written agreement executed on October 9, 1998.
10. The Postal Service withheld federal and state income taxes, FICA, and Medicare tax on the settlement
proceeds. Taxpayer contested the withholding of these amounts and a decision was ultimately rendered on
May 10, 2001, by the MSPB stating that Medicare tax and FICA should not have been withheld. The
decision did not address the issue of income tax liability.
11. Taxpayer filed his 1998 state income tax return requesting a refund of $19,707.00.
12. The Department subsequently audited this return and found that Taxpayer had subtracted $405,000.00
from gross income on line 21 of the federal return. Line 21 also contained a typed notation: "tax free physical
pain." A W-2 from the Postal Service affixed to the return reflected Wages/Other Compensation in the
amount of $463,049.63.
13. In subsequent correspondence with Taxpayer, the Department received a copy of the settlement agreement
and a document entitled "Declaration of Dolores J. Belgrave." Ms. Belgrave is the attorney who represented
Taxpayer in certain MSPB claims and EEO claims against the Postal Service.
14. Ms. Belgrave's declaration stated that Taxpayer received $405,000.00 in settlement of these claims. The
declaration alleged that a $5,000.00 settlement was reached on account of physical pain and suffering and a
$400,000.00 settlement was reached on account of chest pains experienced at work resulting from extreme
anxiety.
15. To the contrary, Taxpayer's settlement agreement made no mention of physical pain and suffering or of
chest pains; and the settlement agreement stated that it contains the entire agreement between the parties.
Additionally, the agreement stated that the execution of the agreement did not constitute an admission of
liability by the Postal Service, and in return for the compensation, Taxpayer agreed to withdraw all appeals
and grievances.
16. The Department adjusted the return to include the $405,000.00 settlement as income, denied the claim for
refund, and issued a proposed assessment for additional tax totaling $8,981.00 due. The assessment also
charged interest and a failure-to-pay penalty.
17. There is a question regarding whether Taxpayer timely protested the assessment and refund denial. The
Department, however, resolved any doubt in favor of Taxpayer and granted his appeal rights.
18. The Department issued a Final Agency Determination affirming the denial of the refund and the issuance
of the proposed assessment.
19. Taxpayer then requested an "oral hearing," which the Department construed to mean that he was
requesting a contested case hearing before the ALJD. Taxpayer subsequently clarified that his request was
for an optional appeals conference. The Department then held an optional appeals conference with Taxpayer,
and the ALJD held the case in abeyance until such conference could be completed.
20. The decision of the Department employees conducting the optional appeals conference affirmed the Final
Agency Determination and this matter proceeded to a hearing before the ALJD on July 12, 2001.
21. Taxpayer stipulated at the hearing that he has no out-of-pocket medical expenses relating to the claims
settled by the October 8, 1998, and October 9, 1998, settlement agreements.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
Jurisdiction and Burden of Proof
Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 12-60-460 (2000), S.C. Code Ann. § 1-23-600(B) (Supp. 2000) and S.C. Code Ann. § 1-23-310 (Supp. 2000).
Generally, the burden of proof is on the party asserting the affirmative in an adjudicatory
administrative proceeding. 2 Am. Jur. 2d Administrative Law § 360 (1994). In the present case, DOR
notified Taxpayer that additional income tax was due. Taxpayer then notified DOR that the DOR's
assessment of his income tax liability was incorrect, as none of the amount received under the settlement
agreement was taxable. When DOR declined to change its assessment, Taxpayer requested and obtained this
contested case hearing in order to show that DOR's assessment was incorrect. Therefore, Taxpayer asserts
the affirmative on this issue and he must carry the burden of proving that DOR's assessment is incorrect by
the preponderance of the evidence. (1) Here, Taxpayer bears the burden of establishing his claim. Id.; cf.
Cloyd v. Mabry, 295 S.C. 86, 88-89, 367 S.E.2d 171, 173 (Ct. App. 1988) ("A taxpayer contesting an
assessment has the burden of showing that the valuation of the taxing authority is incorrect. Ordinarily, this
will be done by proving the actual value of the property. The taxpayer may, however, show by other evidence
that the assessing authority's valuation is incorrect. If he does so, the presumption of correctness is then
removed and the taxpayer is entitled to appropriate relief.") (citations omitted). Other jurisdictions have
reached the same conclusion. See, e.g., In re Broce Const. Co., Inc., 9 P.3d 1281, 1290 (Kan. Ct. App. 2000)
("[O]ur Supreme Court has long held that 'the tax found by the tax commission to be due is presumed to be
valid [and] the taxpayer has the burden of showing its invalidity.'") (citations omitted); see also S.H.J. v.
State Dept. of Revenue, 682 So. 2d 1354 (Ala. Civ. App. 1995); In re Application for Judgment and Sale of
Delinquent Properties for Tax Year 1989, 656 N.E.2d 1049 (Ill. 1995); Nevada Tax Comm'n v. Nevada
Cement Co., 8 P.3d 147 (Nev. 2000); Delco Electronics Corp. v. Wisc. Dept. of Revenue, 597 N.W.2d 774
(Wis. Ct. App. 1999).
Taxability of Income
The sole issue for determination is whether income totaling $405,000.00 received by this taxpayer
from a former employer in settlement of legal actions should be excluded from taxation. In making this
determination, the Court is mindful of the basic premise upon which our federal and state income tax systems
are structured: i.e., all income is taxable unless an exclusion is allowed by law. This premise is codified at
IRC § 61 and Treas. Reg. § 1.61-1, both of which have been adopted by South Carolina. (2)
IRC § 61 reads: "[e]xcept as otherwise provided in this subtitle, gross income means all income from
whatever source derived."
Reinforcing and clarifying this principle, Treas. Reg. Section 1.61-1 reads, in part: "[g]ross income
means all income from whatever source derived, unless excluded by law."
Thus, as a result of the foregoing, Taxpayer bears the burden of proving that his $405,000.00
settlement falls within an exclusion. See Hollingsworth on Wheels, Inc. v. Greenville County Treasurer, 276
S.C. 314, 317, 278 S.E.2d 340, 342 (1981) ("The language of a tax exemption statute must be given its plain,
ordinary meaning and must be strictly construed against the claimed exemption."). Otherwise, such income is
taxable.
Taxpayer claims that such income falls within the exclusion provided by IRC § 104(a)(2) because the
settlement represented compensatory damages resulting from physical pain and suffering (i.e., chest pains). I
find this claim to be without merit.
IRC § 104(a)(2) provides an exclusion from gross income as follows: "the amount of any damages
(other than punitive damages) received (whether by suit or agreement and whether as lump sums or as
periodic payments) on account of personal physical injuries or physical sickness."
The above provision is effective with respect to amounts received after August 20, 1996. In keeping
with federal conformity, South Carolina has adopted this provision. (3) Thus, South Carolina's treatment of
such income is the same as that indicated above. (4) See S.C. Code Ann. § 12-6-50 (2000). It should be noted
that the above provision represents an amendment to the previous statute by adding the word "physical."
Thus, after August 20, 1996, injuries must be not only "personal" but also "physical."
Taxpayer signed the agreements in question on October 8 and 9, 1998, and the income in question was
received in 1998. Therefore, the provision adding the word "physical" is applicable to this taxpayer. Thus,
the amounts paid by the Postal Service must be "on account of personal physical injuries or physical sickness"
in order to be excluded from gross income.
At this point, there has been no reported case law interpreting the term "personal physical injury";
however, the U.S. House Committee Reports on this amendment are very instructive as to the intent of the
language. They read as follows:
The bill provides that the exclusion from gross income only applies to damages received on account of a
personal physical injury or physical sickness. If an action has its origin in a physical injury or physical
sickness, then all damages (other than punitive damages) that flow therefrom are treated as payments received
on account of physical injury or physical sickness whether or not the recipient of the damages is the injured
party. For example, damages (other than punitive damages) received by an individual on account of a claim
for loss of consortium due to the physical injury or physical sickness of such individual's spouse are excluded
from gross income. In addition, damages (other than punitive damages) received on account of a claim of
wrongful death continue to be excluded from taxable income as under present law.
The bill also specifically provides that emotional distress is not considered a physical injury or physical
sickness. Thus, the exclusion from gross income does not apply to any damages received (other than for
medical expenses as discussed below) based on a claim of employment discrimination or injury to
reputation accompanied by a claim of emotional distress. Because all damages received on account of
physical injury or physical sickness are excluded from gross income, the exclusion from gross income applies
to any damages received based on a claim of emotional distress that is attributable to a physical injury or
physical sickness. In addition, the exclusion from gross income specifically applies to the amount of damages
received that is not in excess of the amount paid for medical care attributable to emotional distress.
House Committee Reports on P.L. 104-188 (Small Business Job Protection Act of 1996) (emphasis added).
In a footnote to the Committee Reports, the term "emotional distress" is defined to include physical
symptoms (e.g., insomnia, headaches, stomach disorders) which may result from such emotional distress.
Consistent with the above Committee Reports, the IRS issued two policy documents on this topic subsequent
to the change in the law. These documents are Revenue Ruling 96-65, 1996-2 C.B. 6 (1996), and Internal
Revenue Service, Market Segment Specialization Program Guideline, Lawsuits Awards and Settlements,
Chapter 2, Taxability of Lawsuit Payments (2000), 2000 WL 33171829.
Revenue Ruling 96-65 specifically addresses the issue of whether damages received in an employment
discrimination suit are excluded from income. The ruling explains the prior law and the present law and
concludes that such damages are taxable under current law except to the extent that they are paid for medical
care attributable to emotional distress. The Market Segment Specialization Program Guideline clarifies
Revenue Ruling 96-65 by stating that the taxpayer can only exclude actual out-of-pocket medical costs.
Further, the exclusion of out-of-pocket medical costs also depends upon whether the taxpayer has previously
deducted those medical expenses on his tax return. The guideline also provides a discussion of the taxability
of employment-related lawsuit awards (e.g., wrongful discharge) and employment-related discrimination suit
awards. In both instances, it concludes that a taxpayer can only exclude damages not exceeding medical costs
paid to treat any emotional distress.
Taxpayer argues that both settlements were to compensate him for physical pain and suffering caused by the
Postal Service, specifically, chest pains during periods in which he experienced extreme anxiety at work. As
explained below, Taxpayer did not present any evidence to support this conclusion with respect to either the
$5,000 settlement or the $400,000 settlement.
$5,000.00 Settlement
The $5,000.00 settlement agreement was memorialized in the transcript of an action before the MSPB,
Atlanta Region, Docket Number AT-0752-95-1205-B-2. The transcript indicates that the settlement was paid
to Taxpayer as compensation for his agreement to withdraw his enforcement action against the Postal Service
for its failure to comply with a previous MSPB order on an employment-related claim, (5) and for the
withdrawal of certain EEO claims relating to employment discrimination. (6)
As explained above, the exclusion from gross income does not apply to damages received based on
employment-related or employment discrimination-related claims except to the extent that such damages are
to compensate for out-of-pocket medical costs for the treatment of emotional distress. Taxpayer stipulated at
the hearing that he had no out-of-pocket medical expenses. Therefore, the full $5,000.00 received by
Taxpayer is taxable income.
$400,000.00 Settlement
The $400,000.00 settlement is memorialized in a written agreement dated October 9, 1998. This agreement
was entered into evidence at the hearing over the objection of Taxpayer. Taxpayer contends that the
settlement was for chest pains experienced by him while in the employment of the Postal Service. Taxpayer,
however, did not present any evidence to support this conclusion.
The language of the settlement agreement indicates that it was payment for the withdrawal of certain MSPB
and EEO actions. There is no mention of pain and suffering or chest pains in the agreement. Further, other
paragraphs of the settlement agreement do not support that the agreement was for pain and suffering or any
other physical malady. The following is a list of provisions in the settlement agreement which support the
above conclusion:
1. Paragraph 3 states that the agreement is not an admission by the Postal Service of any wrongdoing or
discrimination.
2. Paragraph 5 states that the agreement is a complete settlement of all administrative complaints filed by
Taxpayer and also provides a listing of the docket numbers of MSPB and EEO complaints previously filed by
Taxpayer. The docket numbers beginning with 4D are EEO complaints and those beginning with AT are
MSPB complaints. There are 28 EEO complaints and three MSPB complaints specifically enumerated in the
settlement agreement.
3. Paragraph 6A states that Taxpayer is to be paid $400,000.00 minus standard deductions. It further states
that issues of tax liability are exclusively between Taxpayer and the IRS.
4. Paragraph 6B provides that Taxpayer must resign his position for personal reasons within one week of the
signing of this agreement. His resignation is irrevocable.
5. Paragraph 6C provides that Taxpayer will have a clean employment record with the Postal Service and
indicates to whom requests for recommendations should be directed.
6. Paragraph 6D provides that the Postal Service will not oppose Taxpayer's OPM retirement if Taxpayer
elects to seek such and that the agreement is not contingent on any OPM decision.
7. Paragraph 6E provides that Taxpayer will not seek or accept employment with the Postal Service in the
future.
- Paragraph 8 provides that the written settlement agreement contains the entire
agreement between the parties.
In addition to the language of the settlement agreement, the Department introduced copies of the original
EEO claims listed in the settlement agreement. Each claim alleged some type of discrimination (e.g.,
retaliation, sex, age, disability, harassment) and sought a variety of corrective actions such as front pay, back
pay, specified monetary amounts, attorneys fees, promotion to certain positions, and medical bills relating to
stress.
The MSPB claims settled by the October 9, 1998, settlement agreement originated from Taxpayer being
placed on enforced leave status for more than 14 days and Taxpayer being involuntarily demoted. Taxpayer
did request certain medical expenses in his claim.
From the language of the agreement and the underlying claims, I find that the $400,000.00 was paid in
settlement of employment-related actions and employment-related discrimination claims. As such, only out-of-pocket medical expenses are excluded from gross income. Taxpayer has stipulated that there are no out-of-pocket medical expenses; therefore, the $400,000.00 he received is taxable income.
Evaluation of Taxpayer's Evidence
At the hearing, Taxpayer relied upon his attorney's declaration, miscellaneous correspondence and court
submissions prepared by his attorney, a decision dated May 10, 2001, of the MSPB, and his own assertions
that the settlement was for pain and suffering. I find none of this evidence to be probative.
The declaration of Taxpayer's attorney states that the October 9, 1998, settlement was for chest pains incurred
by Taxpayer. This statement is unpersuasive for two reasons. First, the declaration is made by the attorney
who represented Taxpayer in employment claims against the Postal Service. Thus, her statement is self-serving. Further, there was no corroborating evidence introduced by Taxpayer to substantiate the attorney's
declaration. As such, I find her declaration unpersuasive. See S.C. Cable Television Ass'n v. Southern Bell
Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992) (holding that the weight and credibility assigned to
evidence presented at a hearing of a matter is within the province of the trier of fact.); see also Doe v. Doe,
324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (noting that the court as finder of fact "has the
authority to determine the weight and credibility of the evidence before him").
Likewise, the court submissions and correspondence are unpersuasive in that they are no more than
Taxpayer's position with regard to the withholding of FICA, Medicare, and taxes.
The MSPB decision dated May 10, 2001, does state that the Postal Service conceded during litigation before
the United States Court of Appeals that the settlement was for pain and suffering rather than wages. (7) On this
basis, the MSPB concluded that the medicare tax and social security tax should not have been withheld.
However, this decision did not address the issue of taxability of the settlement. Further, this decision is not
binding on the ALJD.
Thus, neither the MSPB decision nor the self-serving statements of Taxpayer and his attorney hold any
significant probative value for this tribunal in reaching its decision.
Application of Interest
The Department has assessed interest at the prevailing federal rate. I sustain the Department in this
assessment. S.C. Code Ann. § 12-54-25(A) (2000) provides that interest is due on unpaid
taxes. The interest rate is established by S.C. Code Ann. § 12-54-25(D) and is not discretionary. While a tax
penalty can be waived, there is no South Carolina statute which grants the Department the authority to waive
interest in its entirety. (8) Although there is a statute which allows interest to be compromised, that provision
anticipates a settlement or quid pro quo. This provision is found in S.C. Code Ann. § 12-4-320(3) (2000),
which reads as follows:
The [department] may:
. . .
(3) compromise any tax, interest, or penalty imposed by this title or other law assigned to it . . . .
The ALJD recognized this section as the statutory authority for the Department to settle cases in South
Carolina Department of Revenue v. Bonita Williams d/b/a 6300 Club, No. 98-ALJ-17-0191-CC (S.C.
A.L.J.D. Oct. 13, 1998). Thus, compromising interest would not be appropriate in this case because there is
no settlement. Further, Section 12-4-320(3) also refers to compromising penalties. If the Legislature had
intended the word "compromise" to mean the same as "waiver" of a penalty, then S.C. Code Ann. § 12-54-160 (2000) regarding waiver of penalties would be superfluous. Interest is not a penalty. It is a charge for the
time value of money. Accordingly, I find that interest must be assessed until the tax is paid.
Application of Penalty
The Department has assessed a failure to pay penalty pursuant to S.C. Code Ann. § 12-54-43(E)
(2000). The penalty is ½ of 1% of the tax due per month up to an aggregate of 25%. Section 12-54-160
provides that the Department may waive, dismiss, or reduce penalties. The Department has issued S.C.
Revenue Procedure #98-3 to provide guidance regarding the waiver of penalties. The Revenue Procedure
provides, inter alia, that penalties may be waived in situations where difficult and complex issues exist or
where there has been a recent change in the law that the taxpayer could not reasonably be expected to be
aware of. I find that the issue presented in this case is a complex issue. Further, the 1996 changes to IRC
Section 104(a) affected the tax treatment of Taxpayer's settlement. Since Taxpayer has no tax or related
expertise, I find that Taxpayer may reasonably not have known of such change. Accordingly, I am hereby
waiving the failure-to-pay penalty.
CONCLUSION
For the foregoing reasons, the settlement proceeds received by Taxpayer totaling $405,000.00 are
subject to state income tax. The Department may assess additional state income tax in the amount of
$8,981.00, with interest calculated commensurate with payment. Payment shall be made within 30 days of
the date of this Order.
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 4, 2001
Columbia, South Carolina
1. The preponderance of the evidence is "[t]he greater weight of the evidence; superior evidentiary weight
that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair
and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed.
1999). "The preponderance of the evidence means such evidence as, when considered and compared with
that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be
proved is more likely true than not true." Alex Sanders et al., Trial Handbook for S.C. Lawyers § 9:5
Quantum of Evidence in Civil Cases (2000) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).
2. 0 See S.C. Code Ann. § 12-6-50 (2000) (listing all Internal Revenue Code sections that have not been adopted
by South Carolina). All other Internal Revenue Code sections have been adopted pursuant to S.C. Code Ann.
§ 12-6-40 (2000 & Supp. 2000).
3. 0 See Section 12-6-40(A) (Supp. 2000) (indicating that South Carolina has adopted the Internal Revenue Code
of 1986 as amended through December 31, 1999, including the effective date provisions contained therein).
4. Taxpayer argues that because the Internal Revenue Service found that his settlement proceeds should be
excluded from gross income, the South Carolina Department of Revenue must make a similar finding with
regard to his state income tax liability. In addressing this argument, one must first look to S.C. Code Ann. §§
12-6-40 and -50. Both of these sections refer to the fact that South Carolina has adopted portions of the
Internal Revenue Code. They do not state, however, that the Department is bound by Internal Revenue
Service determinations on federal income tax liability under the Internal Revenue Code. This is made clear
by S.C. Code Ann. §§ 12-6-560, -1110, -1120 and -1130 (2000). Sections 12-6-560 and 12-6-1110 state that
a South Carolina resident individual's gross income, adjusted gross income, and taxable income are
computed as determined under the Internal Revenue Code with certain modifications. Sections 12-6-1120
and 12-6-1130 provide for modifications of gross income and taxable income as computed under the Internal
Revenue Code. Finally, S.C. Code Ann. § 12-6-5540 (2000) provides that the Department may require a
taxpayer to provide copies of returns filed with the Internal Revenue Service and verify the information
contained on the returns.
Given the above statutes, the Department is bound by the Internal Revenue Code, not the Internal Revenue
Service. Thus, for purposes of South Carolina taxation, the Department makes determinations with regard to
the taxability of income using South Carolina law and the Internal Revenue Code. These determinations are
independent of Internal Revenue Service determinations.
5. The original action brought before the MSPB under this number claimed that Taxpayer had been
involuntarily demoted.
6. The EEO cases settled were numbers 4D-290-1006-96 for retaliation and mental disability resulting from
non-selection of taxpayer as McCall postmaster; 4D-290-1016-96 for retaliation and mental disability
resulting from non-selection of Taxpayer for the McCall and Andrews postmaster; 4D-290-1104-96 for
retaliation and mental disability resulting from Taxpayer's merit rating, not being rated, and continuing
harassment; and 4D-290-0012-97 for retaliation and mental disability for Taxpayer being promoted from a
level 15 instead of a level 16, and for harassment.
7. The September 14, 2000, decision of the United States Court of Appeals for the Federal Circuit notes that
the Postal Service merely does not dispute that the settlement was an award for pain and suffering, and not for
lost income and benefits or any other form of wages. See No. 00-3155, slip op. at 4 (Fed. Cir. Sept. 14, 2000).
Notably, there is no reference to any concession that the award was for physical pain and suffering in either
that opinion or the May 10, 2001 MSBP decision.
8. Section 12-54-25(A) allows the Department to waive only up to thirty days' interest for purposes of
administrative convenience.
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