Holland E. Bynam - Page 12




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               Petitioner also relies on section 134 to support his                   
          argument that a portion of his compensation from HISD is                    
          excludable from gross income.                                               

               Section 134(a) provides that “Gross income shall not include           
          any qualified military benefit.”  The term “qualified military              
          benefit” is defined by section 134(b)(1) as:                                

               any allowance or in-kind benefit * * * which–-                         
                    (A) is received by any member or former member of                 
               the uniformed services of the United States * * * by                   
               reason of such member’s status or service as a member                  
               of such uniformed services, and                                        
                    (B) was excludable from gross income on September                 
               9, 1986, under any provision of law, regulation, or                    
               administrative practice which was in effect on such                    
               date (other than a provision of this title). [Emphasis                 
               added.]                                                                

               Petitioner focuses narrowly on the phrase “member or former            
          member” in section 134(b) to support his contention that he falls           
          within the exclusionary rule of section 134(a).  Petitioner                 
          reasons that the “member or former member” language was inserted            
          to apply to “some category of [authorized] personnel other than             
          active members * * * [and] there would be no other reason for               
          these particular benefits being mentioned if not for the tax                
          treatment of JROTC instructors”.  We disagree.                              

               Petitioner did not receive any “qualified military benefit”            
          within the meaning of section 134(b)(1).  First, petitioner’s               
          JROTC pay did not constitute an allowance or in-kind benefit.               






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