Jon L. Stolte and Esther J. Stolte - Page 9




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          determination.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111           
          (1933).                                                                     
               Injuries included in the first two categories are described            
          in section 1.105-3, Income Tax Regs., which provides in pertinent           
          part:                                                                       
               For purposes of section 105(c), loss or loss of use of                 
               a member or function of the body includes the loss or                  
               loss of use of an appendage of the body, the loss of an                
               eye, the loss of substantially all of the vision of an                 
               eye, and the loss of substantially all of the hearing                  
               in one or both ears. * * *                                             
               The term "member" was intended to cover loss of extremities            
          such as arms, legs, or loss of bodily function.  See Hines v.               
          Commissioner, 72 T.C. 715 (1979).  Regarding loss of bodily                 
          "function", we look to whether petitioner's condition has left              
          him effectively without the use of his hands, legs, and feet, as            
          opposed to whether his use is partially impaired.  See Hines v.             
          Commissioner, supra.  In Hines v. Commissioner, supra, we                   
          considered the application of section 105(c) to a pilot who                 
          suffered a heart attack and lost the use of a portion of his                
          heart.  The taxpayer was barred by FAA regulations from returning           
          to his employment.  We considered the function of the heart as a            
          circulatory organ and concluded "petitioner's heart is now                  
          functioning normally in that respect" and that "petitioner is now           
          leading a normal life and he may well live out a normal life span           
          in spite of increased risk."  Hines v. Commissioner, supra at               






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