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than the service retirement provisions of section 2608 of the
Charter, the payments must still pass muster under section 1.104-
1(b), Income Tax Regs. That regulation makes clear that even a
payment triggered by disability is subject to the proscription
against using length of service in computing the payment.
Section 1.104-1(b), Income Tax Regs., provides that the section
104(a)(1) exclusion does not apply to a retirement pension or
annuity to the extent that it is determined by age or length of
service "even though the employee's retirement is occasioned by
an occupational injury or sickness". (Emphasis supplied.) Even a
payment conceded to be occasioned by disability is not excludable
to the extent it is determined by reference to length of service.
Petitioner also cites various differences in the treatment
of "regular" service retirees under Oakland Charter section 2608
(that is, service retirees receiving benefits based on years of
actively working) and disability retirees whose payments are
recomputed under Oakland Charter section 2610(a) "as if" they
were service retirees. For example, Oakland Charter section 2608
retirees may, by working longer than 25 years, become eligible
for allowance percentages higher than 50 percent,12 whereas
Oakland Charter section 2610(a) disability retirees whose
allowance percentage is recomputed at 50 percent are never
12See sec. 2608(e) of the Oakland Charter, reproduced in the
appendix.
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