Patricia L. Baldwin - Page 14




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          pertinent evidence.  See Ware v. Commissioner, 92 T.C. 1267, 1268           
          (1989), affd. 906 F.2d 62 (2d Cir. 1990).                                   
               Though petitioner has failed to establish in the record                
          before us that the Michigan Worker’s Compensation Act qualifies             
          as “an accident and health plan” as defined in section 105(e),              
          and has further failed to establish that the payments she                   
          received from Healthcare are “amounts received by an employee”              
          pursuant to section 105(a), the issue can be decided based solely           
          on the language of the relevant statute, and we shall therefore             
          allow petitioner to argue her reliance on section 105 in her                
          brief.                                                                      
               Petitioner’s contention that her payments are excludable               
          from gross income for the years in issue pursuant to section                
          105(b) is not supported by the language of section 105.  Section            
          105(a) excludes certain “amounts received by an employee” from              
          gross income and section 105(b) excludes “amounts referred to in            
          subsection (a) if such amounts are paid, directly or indirectly,            
          to the taxpayer to reimburse the taxpayer” for incurred medical             
          expenses.  Section 105 concerns the tax treatment of the employee           
          and not the attendant-care provider.  Petitioner in this case is            
          clearly not a taxpayer being reimbursed for medical expenses but            
          an attendant-care provider being paid for services rendered to              
          such a taxpayer.                                                            








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