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salary.3 This statutory change did not, however, result in
payments to JROTC instructors, which would otherwise be
includable in gross income pursuant to section 61, becoming
excludable from gross income.
In addition to the above arguments, petitioner contends that
a portion of his income from the JROTC program is excludable from
gross income because it came directly from the Federal government
and only passed through the school district. Petitioner contends
that because the school district is reimbursed for his wages and
because the rate at which petitioner is paid by the school
district is measured by the rate of pay he would otherwise have
received if he were on active duty, petitioner's income from the
school district should be treated the same as active duty pay and
be partially excludable from gross income.
Petitioner's contract with the school district, titled:
APPLICATION AND CONTRACT FOR ESTABLISHMENT OF A JUNIOR RESERVE
OFFICERS' TRAINING CORPS UNIT, reads in pertinent part:
e. To pay retired personnel employed pursuant to
paragraph 2d above:
(1) As a minimum, an amount equal to the
difference between their retired pay and the active
duty pay and allowances, excluding hazardous duty pay,
that they would receive if ordered to active duty for
that period of time during which such personnel perform
duties in direct support of Junior ROTC. This should
3
Title 10 U.S.C. 2031(d) was amended by the National
Defense Act for Fiscal Year 1993, Pub. L. 102-484, sec. 533(e),
106 Stat. 2315.
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