- 9 - In order to qualify for this exception, the payments to petitioner must satisfy both conditions. We find that the payments fail to satisfy section 105(c)(2); therefore, we need not, and do not, decide whether they satisfy section 105(c)(1). Section 105(c)(2) itself has two parts that must be satisfied: The payments to the taxpayer must be computed with reference to the nature of the injury, and they must be computed without regard to the period the taxpayer is absent from work. With respect to the first part, the Court of Appeals for the Fourth Circuit, to which an appeal in this case would lie, has stated as follows: A review of the cases indicates that for payments to be excludable from income under section 105(c), the instrument or agreement under which the amounts are paid must itself provide specificity as to the permanent loss or injury suffered and the corresponding amount of payments to be provided. * * * exclusion is permitted only under plans which vary benefits to reflect the particular loss of bodily function. * * * Rosen v. United States, 829 F.2d 506, 509 (4th Cir. 1987).5 There is nothing in the disability plan that computes payments with reference to the nature of the injury. Indeed, regardless of the injury, a person receiving benefits for total disability under the disability plan gets a monthly payment equal to 60 percent of monthly earnings. Thus, payments under the disability plan are not “computed with reference to the nature of the 5 It may be noted that our own precedent accords with Rosen v. United States, 829 F.2d 506 (4th Cir. 1987). Hines v. Commissioner, 72 T.C. 715, 720 (1979).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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