William E. Levesque - Page 8




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          Rutter v. Commissioner, supra; Green v. Commissioner, T.C. Memo.            
          1994-264, affd. 60 F.3d 142 (2d Cir. 1995); Curmon v.                       
          Commissioner, T.C. Memo. 1991-432.  Disability payments received            
          under a collective bargaining agreement are not excludable under            
          section 104(a)(1).  See Rutter v. Commissioner, supra at 468;               
          McDowell v. Commissioner, T.C. Memo. 1997-500.                              
               Petitioner bears the burden of proving that respondent's               
          determination is incorrect.  See Rule 142(a); Welch v. Helvering,           
          290 U.S. 111, 115 (1933).                                                   
               2.   Analysis                                                          
               Petitioner did not include in income the $7,101 in pension             
          payments that he received from Pawtucket in 1992.  Petitioner               
          contends that the disability payments were in lieu of worker's              
          compensation because he had been injured on the job and forced to           
          retire.  Petitioner contends that he is being penalized for 31              
          years of dedicated service because he can no longer work because            
          of job-related injuries.  We disagree.  Those payments were at              
          the regular retirement rate of 60 percent of petitioner's average           
          3 years' highest salary under section 59-21 of the Pawtucket City           
          Code because he had more than 25 years of service when he                   
          retired.  His pension payments were not made under a statute in             
          the nature of a worker's compensation act, and section 104(a)(1)            
          does not apply.  Section 59-21 of the Pawtucket City Code did not           
          provide that petitioner would be paid only if he had work-related           
          injuries.  Thus, the pension payments of $7,101 that were made              
          under section 59-21 of the Pawtucket City Code are not in lieu of           


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