Stephen Hayden - Page 10

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          monthly benefit could not exceed the maximum benefit or be less             
          than the minimum benefit, the amount of the monthly benefit was not         
          affected by the severity or nature of the illness or injury that            
          caused the employee’s disability.                                           
               Payments from a disability plan do not qualify for the section         
          105(c)(2) exclusion if the payments are the same regardless of the          
          nature and severity of the particular injuries causing the                  
          disabilities.  Hines v. Commissioner, 72 T.C. 715 (1979).  Under            
          the UNUM policy, an employee who was disabled because he had lost           
          a leg was entitled to the same benefits as one who was disabled             
          because he had lost both legs, another limb, or his sight, suffered         
          kidney failure, or had a heart attack or a stroke.  Such payments           
          are not based upon the type and severity of the injury as required          
          by section 105(c)(2).  Colton v. Commissioner, T.C. Memo. 1995-275.         
               Petitioner contends that the benefits were computed by                 
          reference to the nature of the injury because the UNUM policy               
          distinguished between physical injury or illness and mental                 
          illness.  We disagree.                                                      
               The monthly benefit for a total disability caused by mental            
          illness did not differ from the monthly benefit for a total                 
          disability caused by physical injury.  The benefit period (and thus         
          the total benefit) for a disability caused by mental illness could          
          be shorter than the benefit period for a disability caused by a             
          physical illness or injury, only if the employee was under age 65           






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