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when he/she became disabled and did not return to work within 24
months. We do not believe that such payments are based upon the
type and severity of the injury as required by section 105(c)(2).
Furthermore, here, petitioner’s total disability benefit was
not calculated simply by virtue of his sustaining an injury.
Rather, it was contingent upon his absence from his job. Payments
that are designed to replace the income an employee has lost due to
disability, rather than to compensate for the injury itself, cannot
be said to be computed without regard to the length of time the
employee was absent from work. Beisler v. Commissioner, supra at
1308; Armstrong v. Commissioner, T.C. Memo. 1993-579.
Section 105(c)(2) requires that the amount of the benefit be
calculated with reference to the nature of the particular injury
and that the amount not vary according to whether the injured
taxpayer retired immediately after the injury, returned to work
after some recuperation period, or returned to work immediately.
See S. Rept. 1622, 83d Cong., 2d Sess. 183-184 (1954) (accompanying
H.R. 8300, which was enacted as Internal Revenue Code of 1954, ch.
736, 68A Stat. 1); sec. 1.105-3, Income Tax Regs. In the case at
hand, the monthly benefit to a totally disabled employee under the
UNUM policy spans a period beginning 90 days after he first becomes
unable to work and ending when he is able to work. Had petitioner
been out of work for a period sufficient to collect a monthly
benefit and then returned to full duties, he still would have been
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