John M. and Nancy L. Jerose - Page 10

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               In order to qualify for the section 105(c) exception, the              
          payments to petitioner must satisfy both paragraphs (1) and (2)             
          of section 105(c).  We find that the payments fail section                  
          105(c)(2); therefore, we need not, and do not, decide whether               
          they satisfy section 105(c)(1).                                             
               Section 105(c)(2) itself has two parts that must be                    
          satisfied:  (1) The payments to the taxpayer must be computed               
          with reference to the nature of the injury, and (2) the payments            
          must be computed without regard to the period the taxpayer is               
          absent from work.  With respect to the first part of section                
          105(c)(2), the Court of Appeals for the Fourth Circuit stated in            
          Rosen v. United States, 829 F.2d 506, 509 (4th Cir. 1987):                  
                    A review of the cases indicates that for payments to be           
               excludible from income under section 105(c), the instrument            
               or agreement under which the amounts are paid must itself              
               provide specificity as to the permanent loss or injury                 
               suffered and the corresponding amount of payments to be                
               provided.  * * * Exclusion is permitted only under plans               
               which vary benefits to reflect the particular loss of bodily           
               function.  * * *                                                       
          Accord Beisler v. Commissioner, 814 F.2d 1304, 1307 (9th Cir.               
          1987), affg. T.C. Memo. 1985-25; Hines v. Commissioner, 72 T.C.             
          715, 720 (1979).                                                            
               Further, the legislative history of section 105(c)(2)                  
          illustrates the distinct character of both the nature-of-the-               
          injury and the absence-from-work requirements of the statute.  S.           
          Rept. 1622, 83d Cong., 2d Sess. 183-184 (1954), provides the                







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