George Kiourtsis - Page 9

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            System is governed by the New York City Administrative Code.  The                             
            applicable section provides as follows:                                                       
                  b.  If such medical examination shows that any such                                     
                  member referred to in subdivision a of this section is                                  
                  physically or mentally incapacitated for the                                            
                  performance of duty and ought to be retired, the                                        
                  medical board shall so report and the board shall                                       
                  retire such member for ordinary disability * * * .                                      
            New York City Admin. Code, sec. 13-167 (1988) (emphasis added).                               
            The New York City Administrative Code awards disability                                       
            retirement because of inability to perform duties, regardless of                              
            the cause.  Although petitioner could not perform his duties                                  
            because he was suffering from Post Traumatic Stress Disorder, he                              
            was awarded disability retirement because he could not perform                                
            the duties of a captain in the New York City Department of                                    
            Corrections; the specific finding of Post Traumatic Stress                                    
            Disorder was incidental to the finding that he was disabled.                                  
            Under Haar, petitioner is not entitled to exclude his pension                                 
            payments from gross income.                                                                   
                  Petitioner further contends, on the basis of a Senate                                   
            Finance Committee report, that the legislative history of section                             
            104(a) supports his interpretation of the statute.  That report                               
            states in pertinent part:                                                                     
                        At all times, Veterans' Administration disability                                 
                  payments will continue to be excluded from gross                                        
                  income.  In addition, even if a future serviceman who                                   
                  retires does not receive his disability benefits from                                   
                  the Veterans' Administration, he will still be allowed                                  
                  to exclude from his gross income an amount equal to the                                 
                  benefits he could receive from the Veterans'                                            

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