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Section 1.104-1(b), Income Tax Regs., provides in pertinent
part:
Section 104(a)(1) excludes from gross income amounts which
are received by an employee under a workmen’s compensation
act * * * or under a statute in the nature of a workmen’s
compensation act which provides compensation to employees
for personal injuries or sickness incurred in the course of
employment. * * * However, section 104(a)(1) does not
apply to a retirement pension or annuity to the extent that
it is determined by reference to the employee’s age or
length of service, or the employee’s prior contributions,
even though the employee’s retirement is occasioned by an
occupational injury or sickness. * * * [Emphasis added.]
This and other courts have consistently held that, in order
to be excludable under the provisions of section 104(a)(1),
retirement benefits or payments may not be based upon any factor
other than disability, and, where benefits are based upon any
other factor, such as age or length of service on the job, the
retirement plan under which such benefits are paid will not
qualify as being similar to workmen’s compensation acts within
the meaning of section 104. Haar v. Commissioner, 78 T.C. 864
(1982), affd. 709 F.2d 1206 (8th Cir. 1983); Riley v. United
States, 140 Ct. Cl. 381, 156 F. Supp. 751 (1957); Mabry v.
Commissioner, T.C. Memo. 1985-328; Dauria v. Commissioner, T.C.
Memo. 1982-458; Carlton v. United States, 7 Cl. Ct. 323 (1985),
affd. 782 F.2d 173 (Fed. Cir. 1986).
There is no dispute that the benefits petitioner received
came from the nonindustrial disability retirement program, and
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