Estate of James F. Hall, Jr., Deceased, Harriet Hall, Executrix, and Harriet Nixon Hall - Page 11

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          other courts.  Caplin v. United States, supra at 547; Gordon v.             
          Commissioner, supra at 637-638.                                             
               We conclude that the disability provision in the Hadd-Too              
          Plan was merely one of several events that could trigger a                  
          participant's claim to accrued retirement benefits.  Petitioners            
          have simply failed to meet their burden of proving by "clear                
          indicia" that the Plan was intended to serve the dual purpose of            
          providing accident or health benefits as well as retirement                 
          benefits.  Accordingly, the $1,027,229.45 distribution received             
          by Mr. Hall is taxable as deferred compensation and not                     
          excludable from gross income as accident or health benefits under           
          section 105.                                                                
               Even if the Hadd-Too Plan had constituted a dual purpose               
          plan, the distribution in question fails to meet the requirement            
          of section 105(c)(2) that the amount of any payment be computed             
          with reference to the nature of the injury.  This requirement is            
          met only if the plan varies the benefits according to the type              
          and severity of the taxpayer's injury.  Berman v. Commissioner,             
          925 F.2d at 940; Rosen v. United States, 829 F.2d 506, 509-510              
          (4th Cir. 1987); Beisler v. Commissioner, 814 F.2d 1304, 1308               
          (9th Cir. 1987), affg. T.C. Memo. 1985-25; Hines v. Commissioner,           
          72 T.C. 715, 720 (1979).                                                    
               Rather than computing benefits with reference to the type              
          and severity of the injury, the Hadd-Too Plan, upon a showing of            
          a total disability, determines the benefits solely on the basis             




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