John D. Smith and Hazel B. Smith - Page 8

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          accident or health insurance for personal injuries must be                  
          included in gross income to the extent such amounts are                     
          attributable to contributions by the employer that were not                 
          includable in the gross income of the employee.  Sec. 105(a).               
               In this case there is nothing in the record that suggests              
          that the amounts contributed by Consolidated on behalf of Mr.               
          Smith for the long-term disability insurance that generated the             
          payments here under consideration were includable in his gross              
          income.  Although he testified that he believed that he might               
          have contributed a de minimis amount towards the insurance, we do           
          not find his testimony on the point to be sufficient to support a           
          finding that he did so.  Consequently, we find that section                 
          105(a) rather than 104(a)(3) controls.  It follows that                     
          petitioners must include in their 1994 income the amount of long-           
          term disability payments received by Mr. Smith during that year,            
          and respondent's determination in this regard is sustained.                 
               To reflect the foregoing and the agreed adjustments,                   
                                             Decision will be entered                 
                                        under Rule 155.                               













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