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difference is that time spent on disability was not formally
credited as "service". We do not believe this should matter. To
conclude otherwise would make the taxation of workmen's
compensation payments turn on mere labels employed in the
municipal charter.
We also find unpersuasive petitioner's argument that his
post-October 31, 1991, payments did not, in contrast to those in
Mabry v. Commissioner, T.C. Memo. 1985-328, convert from
disability retirement payments under section 2610(a) of the
Oakland Charter to service retirement payments under section 2608
of the Charter. Even if made pursuant to the disability
retirement provisions of section 2610(a) of the Charter rather
11(...continued)
statute provided that an employee could elect to receive, as
compensation for job-related injury, the same sick leave "to
which he would be entitled * * * if his injuries had not arisen
out of or in the course of his employment". Givens v.
Commissioner, supra at 1149.) We concluded that since the sick
leave payments were provided, under the statute's terms, as
compensation for job-related injury, they were received under a
workmen's compensation statute and excludable under sec.
104(a)(1). It did not matter that the payments were computed "as
if" non-job-related injury were being compensated.
Petitioner apparently would have us apply an analogous
principle in the instant case, namely, that it does not matter
that the payments to him after the 25th anniversary date of his
hire were computed "as if" he had taken service retirement (based
on his years of actual service and of "deemed" service while on
disability), so long as his retirement was for job-related
injury. We decline to do so. Givens was not concerned with sec.
1.104-1(b), Income Tax Regs., and that regulation makes clear
that an exclusion under sec. 104(a)(1) depends not only on
whether the payment was for job-related injury but also on
whether it was determined by reference to length of service.
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