Stanley K. and Sandra B. Evanko - Page 5

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               Petitioner contends that the unreported portion of his JROTC           
          pay represents "qualified military benefits" that are excludable            
          from gross income pursuant to section 134 and 10 U.S.C. sec.                
          2031(d) (1994).  Petitioner relies on the statutes and Department           
          of Defense (DOD) Directive No. 1205.13 (Dec. 26, 1995), which               
          provide that the total compensation received by a retiree-                  
          instructor is to be equal to the difference between retired pay             
          and active duty pay plus "allowances" that the retiree-instructor           
          would receive if ordered to active duty.  He proposes that the              
          statute and the DOD directive establish "equitable parity" in the           
          compensation of retired and active duty instructors.  Petitioner            
          then argues for an exclusion from his income equal to the sum of            
          the allowances received by active duty members of his rank.                 
          Otherwise, according to petitioner, the disposable income that he           
          would receive as a JROTC instructor would be less than that of an           
          active duty officer performing identical services.                          
               The issues petitioners raise have already been addressed by            
          this Court.  See Lyle v. Commissioner, 76 T.C. 668 (1981), affd.            
          without published opinion 673 F.2d 1326 (5th Cir. 1982); Bynam v.           
          Commissioner, T.C. Memo. 2001-142; Tucker v. Commissioner, T.C.             
          Memo. 1999-373.                                                             
               In Lyle v. Commissioner, supra, the Court held that retired            
          military personnel may not rely on 10 U.S.C. sec. 2031(d) to                
          exclude from income salary received as a JROTC instructor.  The             

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