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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.
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