Raymond J. and Jacquelyn M. Byrne - Page 18




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               Finally, we note that the commission could have                        
          theoretically awarded the benefits to Judge Byrne on the basis of           
          his having served more than 2 years as a judge or on the basis of           
          his work-related disability and that a factual issue could                  
          conceivably have been raised regarding whether the benefits were            
          actually received under that portion of CGC section 75061(a) that           
          is in the nature of a workers’ compensation act.  Respondent does           
          not argue this issue on brief.  Indeed, in response to                      
          petitioners’ argument that the burden of proof on this issue is             
          upon respondent pursuant to section 7491, respondent states that            
          “This case involves purely a legal question, namely whether the             
          California Judges’ Retirement Law is in the nature of a worker’s            
          compensation act.”15                                                        







               14(...continued)                                                       
          274, 281 n.15 (1985); Thurman v. Commissioner, T.C. Memo. 1998-             
          233.                                                                        
               15Under these circumstances, we need not decide who bears              
          the burden of proof under sec. 7491(a)(1).  However, the parties            
          agree that the examination began on Mar. 31, 1999, and that none            
          of the limitations under sec. 7491(a)(2) are applicable.                    
          Moreover, petitioners introduced credible evidence that the                 
          commission had before it several reports which concluded that               
          Judge Byrne was disabled as a result of a work-related injury and           
          that it could have awarded the benefits on this basis.                      







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