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Initially, we note that petitioner, in his capacity as a
JROTC instructor, is not, while so employed, considered to be on
active duty for any purpose. See 10 U.S.C. sec. 2031(d)(2). We
addressed this matter in Lyle v. Commissioner, 76 T.C. 668
(1981), affd. without published opinion 673 F.2d 1326 (5th Cir.
1982), and in Tucker v. Commissioner, T.C. Memo. 1999-373. The
fact that Congress never intended to afford similar treatment to
active duty officers and retired officers serving as JROTC
instructors is evident because:
The legislative history [of 10 U.S.C. sec. 2031] does
not suggest that Congress intended to establish
“parity” between active duty and retired officers
serving as Junior ROTC instructors; instead, retired
officers were to be utilized in order to permit
expansion of the Junior ROTC program at lesser cost and
with fewer drains on active duty military strength than
would be required if the program were staffed by active
duty personnel. * * * Thus, it appears that the
“additional amount” paid to retired officers [by the
employing school] was not intended to provide either
basic pay or allowances to reimburse retired officers
serving as Junior ROTC instructors for their costs for
meals and quarters. Instead, the “additional amount”
was designed as an incentive payment to induce retired
personnel to accept employment as Junior ROTC
instructors so that the Government could realize
economies in staffing the Junior ROTC program. * * *
[Lyle v. Commissioner, supra at 676.]
Petitioner also contends that a portion of his pay as a
JROTC instructor is excludable from gross income because the
source of such pay is the Federal Government and the employing
school is not given discretion with respect to compensation
scales.
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