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retirement as for a service retirement is necessarily “fatal” to
petitioners’ case.13
Respondent suggests that the benefits Judge Byrne received
are determined by reference to Judge Byrne’s length of service
and that this is in “direct contravention” of section 1.104-1(b),
Income Tax Regs. That section provides:
However, section 104(a)(1) does not apply to a
retirement pension or annuity to the extent that it is
determined by reference to the employee’s age or length
of service * * *, even though the employee’s retirement
is occasioned by an occupational injury or sickness.
* * *
Respondent contends that “Article 3.6 which provides for the
amount of the benefit for both service and disability retirement,
provides for the identical pension which is determined by length
of service.” For reasons similar to those stated above, we
cannot agree with respondent’s contention. Although Judge Byrne
may receive the same amount of benefits under CGC sections 75075
and 75076 as a judge who retires on the basis of years of service
under CGC section 75025, Judge Byrne’s benefits were not received
13We also question respondent’s assertion that a retired
judge receives the same benefits under CGC sec. 75025 as sec. CGC
75060(a). Respondent is correct that generally a retiree will
receive the same rate of benefits under either provision; i.e.,
65 percent of the judge’s salary. However, as we noted in Golden
v. Commissioner, supra, “retirement under section 75060 CGC may,
under some circumstances, have different consequences than
retirement under section 75025 CGC, see, e.g., secs, 75060.6,
75080 CGC”. Indeed, benefits received for a CGC sec. 75060(a)
retirement are forfeitable or subject to reduction if certain
conditions are met. See, e.g., CGC secs. 75060.6 (subsequent
medical examinations), 75080 (subsequent employment while less
than 70 years of age).
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