John Edward Tucker - Page 7




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               not be considered an attempt to cap or limit the amount                
               of pay that may be agreed upon between the individual                  
               Junior ROTC instructor and the instructor's employer,                  
               however, the Army will pay no more than the computed                   
               Army formula.  Salary will be recomputed as military                   
               pay raises and/or cost of living increases occur.                      

          It is clear from the contract language that petitioner was able             
          to negotiate his own rate of pay and that petitioner's active               
          duty rate of pay was only a "minimum" guideline.  Petitioner                
          conceded at trial that each school district contract was                    
          different.                                                                  
               In Lyle v. Commissioner, supra, this Court stated that,                
          "fairly construed", 10 U.S.C. section 2031(d) does "no more than            
          establish a formula" for calculating the minimum amount of                  
          compensation a given school district would pay a JROTC                      
          instructor.  See Lyle v. Commissioner, supra at 675.  Regardless            
          of the reimbursement arrangement or the scale by which his income           
          was measured, it is clear that petitioner received income from              
          the school district as wages for his work as a JROTC instructor.            
          Simply put, if petitioner did not work as a JROTC instructor, the           
          school district would not have paid him; petitioner's income from           
          the school district was for services rendered, and, thus, it is             
          not excludable from income.                                                 
               It is undisputed in the record that petitioner retired from            
          the U.S. Army in 1977 and was not on active duty in 1995.                   
          Additionally, 10 U.S.C. section 2031(d) clearly states that a               






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