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references are to the Internal Revenue Code, as amended. Some of
the facts have been stipulated and are so found.
Background
Petitioners are husband and wife. At the time of the filing
of the petition, petitioners resided in Arlington, Texas.
Petitioner retired from the United States Army in 1995, and
petitioner was not on active duty for any part of 2002. During
2002, the Dallas Independent School District (the school
district) employed petitioner as a JROTC instructor, and
petitioner received wages of $44,347 from the school district.
Discussion
Although petitioners concede that petitioner was not an
“active duty member” of the Armed Forces during 2002, petitioners
contend that JROTC instructors are “active members” of the Armed
Forces pursuant to Army Regulations 145-2, Junior Reserve
Officers’ Training Corps Program.1 Relying on IRS Publication 3,
Armed Forces’ Tax Guide (Publication 3), petitioners contend that
petitioner’s status as an active member of the Armed Forces
allows petitioners to exclude from gross income allowances for
subsistence, housing, and uniforms in the aggregate amount of
$13,968.21. In support of the exclusion, petitioners testified
at trial that the school district received payments from the
1Ch. 4-3 of Army Regulations 145-2 provides as follows:
“Equitable procedures. Military retirees employed as Junior ROTC
instructors are members of the Armed Forces not on active duty.”
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Last modified: May 25, 2011