Ronald Neil and Makbule Robinson - Page 5

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          account for the differing tax treatments of the separation and              
          disability payments.  See Berger v. Commissioner, 76 T.C. 687,              
          691-692 (1981) (quoting S. Rept. 1096, 87th Cong., 1st Sess.                
          (1961), 1961 U.S.C.C.A.N. 1783, 1786).                                      
               In 1980, Congress enacted the Defense Officer Personnel                
          Management Act, Pub. L. 96-513, 94 Stat. 2835, which amended the            
          separation pay recoupment statute, replacing the 75-percent                 
          recoupment with total recoupment.  See Pub. L. 96-513, Title I,             
          sec. 109(c), 94 Stat. 2870, 2871 (1980) (effective Sept. 15,                
          1981) (codified at 10 U.S.C. sec. 1174(h)(2)).  No alternative              
          provision was established to relieve the imbalance of recouping             
          taxable separation pay with nontaxable disability compensation,             
          indicating that Congress’ intent was to eliminate the tax relief            
          for recoupment.                                                             
               Petitioner’s being diagnosed with the disability during his            
          military service does not change the analysis under 10 U.S.C.               
          1174(h).  Petitioner originally received taxable separation                 
          benefits, and no provision for reclassifying the separation pay             
          is provided by any applicable statute.  Therefore, the character            
          of the separation benefits remained taxable even after petitioner           
          became eligible for disability compensation.  Petitioners must              
          include the $99,434.30 separation payment in income on their 1992           
          Federal income tax return.                                                  
               Petitioner has asserted that he knows of two fellow                    
          veterans, who were initially awarded separation pay and were                




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