James A. Picard - Page 15

                                       - 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 a            

Page:  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