Gregg Chernik - Page 13




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               For disability benefits to qualify for exclusion under                 
          section 105(c), three requirements must be met.  See Beisler v.             
          Commissioner, 814 F.2d 1304, 1306-1308 (9th Cir. 1987), affg. en            
          banc T.C. Memo. 1985-25.  We address only one--whether the                  
          payments are computed with reference to the nature of the injury.           
          See sec. 105(c).  This requirement is satisfied only if benefits            
          under the plan vary according to the type and severity of the               
          injury.  See Beisler v. Commissioner, supra; Rosen v.                       
          Commissioner, 829 F.2d 506, 510 (4th Cir. 1987); Hines v.                   
          Commissioner, 72 T.C. 715, 720 (1979).                                      
               Although petitioner unquestionably suffered from serious               
          medical ailments in 1994 and thereafter, the record does not                
          support a finding that the disability benefits received by                  
          petitioner were calculated with reference to the type and                   
          severity of the injury suffered.  Rather, the evidence is clear             
          that the disability benefits were calculated with reference to              
          the petitioner's salary and his years of service with the City              
          and did not vary depending on the injury or illness suffered.               
               Because petitioner's disability benefits were not calculated           
          with reference to the nature of petitioner's injury as required             
          by section 105(c)(2), petitioner's disability benefits do not               
          fall within the section 105(c) exception.  Accordingly, we                  
          conclude that the short-term and long-term disability benefits              







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