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under accident and health plans for personal injuries or
sickness.
2. Section 104(a)(1)
Section 104(a)(1) excludes from gross income “amounts
received under workmen’s compensation acts as compensation for
personal injuries or sickness”. The regulations provide that
section 104(a)(1) includes “a statute in the nature of a
workmen’s compensation act which provides compensation to
employees for personal injuries or sickness incurred in the
course of employment.” Sec. 1.104-1(b), Income Tax Regs. A
statute that conditions eligibility for benefits on the existence
of a work-related injury or sickness may qualify as a workers’
compensation act for purposes of section 104 even though those
benefits are called “disability retirement benefits.” Take v.
Commissioner, 804 F.2d 553, 557 (9th Cir. 1986), affg. 82 T.C.
630 (1984). However, section 104(a)(1) “does not apply to a
retirement pension or annuity to the extent that it is determined
by reference to the employee’s age or length of service * * *
even though the employee’s retirement is occasioned by an
occupational injury or sickness.” Sec. 1.104-1(b), Income Tax
Regs. The relevant inquiry is into the nature of the statute
pursuant to which the payment is made and not the source of the
particular taxpayer’s injury. Rutter v. Commissioner, 760 F.2d
466, 468 (2d Cir. 1985), affg. T.C. Memo. 1984-525. If the
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