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section 105(d) which is no longer in effect, as noted above, and,
therefore, is irrelevant to our analysis. In Jackson v.
Commissioner, supra, the Court examined a written retirement and
death benefit plan and held, based upon the Supreme Court
decision in Haynes v. Commissioner, 353 U.S. 81 (1957), that the
plan qualified as “health insurance” pursuant to section 22(b)(5)
of the Internal Revenue Code of 1939 (section 22(b)(5)).3 We
note that section 22(b)(5) is the precursor to section 104.
Similarly to section 22(b)(5), section 104(a)(3) excludes from
gross income “amounts received through accident or health
insurance * * * for personal injuries or sickness”. A notable
difference between the two sections, however, is that section
104(a)(3) qualifies the exclusion by the following limitation:
(other than amounts received by an employee,
to the extent such amounts (A) are
attributable to contributions by the employer
which were not includible in the gross income
of the employee, or (B) are paid by the
employer);
The opinion in Jackson v. Commissioner, supra, does not apply the
current statute and, therefore, is distinguishable from the
present case.
On the basis of the record, we find that the disability plan
payments petitioner received from the union are not excludable
3 Section 22(b)(5) of the Internal Revenue Code of 1939,
states that gross income shall not include “amounts received
through accident or health insurance or under workmen’s
compensation acts, as compensation for personal injuries or
sickness...”.
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