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Finally, we note that the commission could have
theoretically awarded the benefits to Judge Byrne on the basis of
his having served more than 2 years as a judge or on the basis of
his work-related disability and that a factual issue could
conceivably have been raised regarding whether the benefits were
actually received under that portion of CGC section 75061(a) that
is in the nature of a workers’ compensation act. Respondent does
not argue this issue on brief. Indeed, in response to
petitioners’ argument that the burden of proof on this issue is
upon respondent pursuant to section 7491, respondent states that
“This case involves purely a legal question, namely whether the
California Judges’ Retirement Law is in the nature of a worker’s
compensation act.”15
14(...continued)
274, 281 n.15 (1985); Thurman v. Commissioner, T.C. Memo. 1998-
233.
15Under these circumstances, we need not decide who bears
the burden of proof under sec. 7491(a)(1). However, the parties
agree that the examination began on Mar. 31, 1999, and that none
of the limitations under sec. 7491(a)(2) are applicable.
Moreover, petitioners introduced credible evidence that the
commission had before it several reports which concluded that
Judge Byrne was disabled as a result of a work-related injury and
that it could have awarded the benefits on this basis.
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