- 14 - charter terms at issue in those cases, whereas it has been stipulated in the instant case that petitioner did not receive any service credit under section 2609 of the Oakland Charter during the time that he received a disability retirement allowance. Moreover, petitioner argues, because the taxpayers in the two prior cases got service credit, their payments actually converted under the charter terms from disability retirement to service retirement payments at the time of recomputation, whereas his did not.9 In petitioner's view, it is the formal crediting of time spent on disability as "service" under the charters' 9Petitioner relies heavily on Boystel v. Commissioner, T.C. Memo. 1961-146, to support his position that the retirement payments after the 25th anniversary of his hire date could not have converted to service retirement payments because he did not receive credit for service while on disability. We do not believe Boystel helps petitioner. In Boystel, the Commissioner unsuccessfully challenged the sec. 104(a)(1) exclusion for payments received in and after the 25th year following the year of hire of a taxpayer who had been previously retired for, and was receiving payments on account of, a job-connected disability. The taxpayer had retired for disability prior to completing 25 years of (actual) service, the period necessary to qualify for service retirement under the applicable police regulations. The Commissioner sought to deny the sec. 104(a) exclusion for payments received in 1955 (and thereafter), which was the year in which the taxpayer would have completed 25 years of actual service but for the disability retirement. However, Boystel did not involve a recomputation of the payments at the 25-year mark, and sec. 1.104-1(b), Income Tax Regs., was not considered or cited in the case. The taxpayer was receiving the same payment in the 25th year following his hire date (and thereafter) as that initially awarded him when he had been retired for disability 8 years earlier. Thus, the challenged payments had not been recomputed with reference to the period that the taxpayer was on disability, and the Court had no occasion to consider the effect of such a factor or the application of sec. 1.104-1(b), Income Tax Regs.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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