Stanley K. and Sandra B. Evanko - Page 9

                                        - 8 -                                         
          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.               

Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011