- 15 - 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 aPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011