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"additional amount" of compensation retired military instructors
are entitled to receive from the employing school and the maximum
portion of that additional amount that will be reimbursed by the
Federal Government. Id. at 675. The "additional amount" is, in
effect, an inducement offered to persuade retired personnel to
accept employment as JROTC instructors. Id. at 676. Active duty
pay is merely a guideline in determining the level at which JROTC
instructors are to be compensated.
In Lyle v. Commissioner, supra at 674-675, the Court
explained why retired officers serving as JROTC instructors do
not receive nontaxable "allowances". Only officers who are
entitled to receive "basic pay" are entitled to an allowance for
subsistence, in lieu of meals in kind, and a basic allowance for
quarters, unless the officer occupies quarters provided by the
military. See 37 U.S.C. secs. 402 and 403 (1994). The taxpayer
did not qualify for these allowances because he did not receive
"basic pay". He did not receive "basic pay" because he was not
on "active duty". See 37 U.S.C. sec. 204 (1994). The taxpayer
was not on "active duty" because, as a retired military JROTC
instructor, he "is not, while so employed, considered to be on
active duty or inactive duty training for any purpose." 10
U.S.C. sec. 2031(d)(2).
Petitioners object to the Court's "reliance" on the language
of 10 U.S.C. sec. 2031(d)(2). They argue that the provision is
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