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terms that resulted in the Court's conclusion in Wiedmaier and
Mabry that a payment based in part on time spent on disability
constituted a payment "determined by reference to * * * length of
service" within the meaning of section 1.104-1(b), Income Tax
Regs. Because petitioner did not receive service credit for the
time he spent on disability, he argues that the recomputation of
his retirement payments on the 25th anniversary of his date of
hire could not have been based on his length of service, because
in his view he did not have 25 years of service as that term
should be construed. The implication of petitioner's position is
that time spent on disability should not count as "service"
within the meaning of section 1.104-1(b), Income Tax Regs.,
unless the applicable workmen's compensation statute formally
designates it as such.
We believe petitioner construes Wiedmaier and Mabry too
narrowly. It is true that the Court in Mabry found, apparently
pursuant to the parties' stipulation, that time spent by the
taxpayer on disability was formally credited as service under
section 2609 of the Oakland Charter, and that as a consequence
the taxpayer's retirement payments converted on the recomputation
date from disability retirement payments under section 2610(a) of
the Charter to service retirement payments under section 2608 of
the Charter. The Wiedmaier opinion is at least susceptible of a
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