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section 104(a)(4) will not apply to an individual unless one of
four criteria is satisfied. One criterion is that the individual
be a member of an organization referred to in section 104(a)(4)
on or before September 24, 1975. Sec. 104(b)(2)(B). Because
petitioner was a member of the Air Force on September 24, 1975,
he meets that criterion. However, section 104(a)(4) applies only
to payments received for personal injuries or sickness.
Petitioner has the burden of proving that the pension
payments that he received were for a disability incurred during
his active service in the military. Scarce v. Commissioner, 17
T.C. 830, 833 (1951). As the Court there stated: "Retirement
pay for length of service is not exempt from taxation." Id.
Petitioner's Air Force record clearly states that his
retirement was based on years of service, not on disability. The
record contains no evidence that petitioner was on a disability
pension. Petitioner has attempted to use the VA disability
rating to justify his position that he could have received a
"disability retirement pension" at the time of his retirement.
Petitioner's argument is not supported by the evidence in the
record. This Court has previously considered similar arguments
and has ruled that payments under service pensions should be
included in income regardless of the existence of a VA disability
determination. Lambert v. Commissioner, 49 T.C. 57 (1967);
Sidoran v. Commissioner, T.C. Memo. 1979-56, affd. 640 F.2d 231
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