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Officers' Training Corps Program; Organization, Administration,
Operation, and Support (revision effective March 24, 2000), par.
4-20, states that "Although an instructor may receive an amount
'equal' to the military pay and allowances he or she would
receive if on active duty, the payments he or she receives are
not, in fact, military pay and allowances paid by the Army."
In their oral and written presentations to the Court,
petitioners evince a belief that the statutory interpetations as
expressed in the Court's opinions cited above are somehow
aberrant or anomalous. The Court reminds petitioners that the
decision in Lyle, was affirmed by the Court of Appeals for the
Fifth Circuit. Also, petitioners may be unaware of two Federal
District Court opinions issued before this Court's decision in
Lyle. In Scott v. United States, 33 AFTR 2d 74-858, 74-1 USTC
par. 9281 (D.S.C. 1973), the District Court found that 10 U.S.C.
sec. 2031 merely sets out a formula to calculate the salary of
retired members serving as JROTC instructors. It further found
that military "allowances" are payable only to members entitled
to "basic pay", that only active duty members are entitled to
basic pay, and that the taxpayer, retired from the military, was
not on active duty while serving as a JROTC instructor. The
decision by the Federal District Court in Sweeney v. United
States, 34 AFTR 2d 74-5700, 74-2 USTC par. 9672 (N.D. Ga. 1974),
discusses favorably and is in accord with the Scott decision.
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