Margaret M. Merker - Page 11

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          contributions by the employer which were not includable in the              
          gross income of the employee or (B) are paid by the employer.7              
               Section 105(b) provides an exclusion for amounts paid by an            
          employer to the taxpayer to reimburse the taxpayer for expenses             
          for medical care.  Medical expense reimbursements are not at                
          issue in this case, so the exception in section 105(b) does not             
          apply.  Section 105(c) excludes from gross income amounts paid by           
          an employer to the extent such amounts:  (1) Constitute payment             
          for the permanent loss or loss of use of a member or function of            
          the body, or the permanent disfigurement of the taxpayer, and (2)           
          are computed with reference to the nature of the injury without             
          regard to the period the employee is absent from work.  However,            
          section 105(c) applies to exclude payments from gross income only           
          if the plan or contract under which such payments are made varies           
          the amount of the payments according to the type and severity of            
          the injury suffered by the employee.  Rosen v. United States, 829           
          F.2d 506, 509 (4th Cir. 1987); Beisler v. Commissioner, 814 F.2d            
          1304, 1307 (9th Cir. 1987), affg. en banc T.C. Memo. 1985-25.               

          7   Former sec. 105(d) provided a limited exclusion from gross              
          income for amounts received in lieu of wages prior to attaining             
          age 65 by completely disabled persons retired on disability.                
          Sec. 105(d) was repealed by sec. 122(b) of the Social Security              
          Amendments of 1983, Pub. L. 98-21, 97 Stat. 87, and replaced with           
          a credit for the permanently and totally disabled for years                 
          beginning after Dec. 31, 1983, provided in sec. 37.  Sec. 37 was            
          subsequently renumbered as sec. 22.  Deficit Reduction Act of               
          1984, Pub. L. 98-369, sec. 471(c)(1), 98 Stat. 484, 826.                    
          Respondent has conceded that petitioner is entitled to a credit             
          under sec. 22 for the years in issue.  See supra note 2.                    




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