Stephen Hayden - Page 9

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          not compute the amount of its payments with reference to the nature         
          of the injury.  Id.                                                         
               To exclude from income amounts described in section 105(a),            
          section 105(c) first requires that the taxpayer prove that the              
          amount received is payment for “the permanent loss or loss of use           
          of a member or function of the body, or permanent disfigurement, of         
          the taxpayer”.  Sec. 105(c)(1); see also Watts v. United States,            
          703 F.2d 346, 350-53 (9th Cir. 1983).  Next, the taxpayer must show         
          that the amount received is “computed with reference to the nature          
          of the injury without regard to the period the employee is absent           
          from work."  Sec. 105(c)(2).                                                
               The parties agree that the payments petitioner received from           
          UNUM in 1997 and 1998 constitute payments for his permanent loss or         
          use of a member or function of his body within the meaning of               
          section 105(c)(1).  The parties disagree as to whether the payments         
          were computed with reference to the nature of the injury without            
          regard to the period petitioner was absent from work as required by         
          section 105(c)(2).                                                          
               In the case before us, UNUM agreed to pay the monthly benefit          
          for the period of disability following a 90-day elimination period.         
          The UNUM policy provided that petitioner’s monthly disability               
          benefit would be based on 66-2/3 percent of petitioner’s salary at          
          the time of the disability up to the maximum $10,000, regardless of         
          the nature of the injury or illness.  Although the amount of the            






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