James A. Picard - Page 17

                                       - 17 -                                         

          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              

          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.                

Page:  Previous  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

Last modified: May 25, 2011