8
individual of his principal employment should qualify for the
exclusion, we observed:
the overall scheme of section 105(c) is aimed at providing
tax relief to persons who suffer serious, permanent physical
injury and receive compensation because of it. The fact
that a person may have also lost wages or suffered a
diminution of earning capacity * * * is irrelevant.
Id. at 720. In this case, petitioner's injury to his right ankle
and foot does not satisfy the criteria of section 105(c)(1).
Like the taxpayer in West v. Commissioner, supra, petitioner's
partial loss of an ankle and a foot does not prevent him from
working in other positions requiring less strenuous activity.
Petitioner's employment by Pinkerton's, Inc. and the Gardens is
proof of this fact. And petitioner's heart condition, like that
of the pilot in Hines v. Commissioner, supra, and, as such, does
not qualify as a permanent loss or loss of use of a member or
function of the body under section 105(c)(1).
Furthermore, section 105(c)(2) requires that benefits paid
under a health or accident plan be computed with regard to the
nature of the injury. In Beisler v. Commissioner, supra, the
disability payments made to a football player were determined by
the number of years the retiree played football in the National
Football League, and not the type and severity of the injury. In
holding that the payments were not excludable under section
105(c)(2), the Court of Appeals for the Ninth Circuit stated:
To accomplish the congressional purpose of excluding
only those payments that compensate for permanent losses of
bodily function, the nature-of-the-injury requirement is
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