Anthony LaCarter Dorsey and Annette LaVerne Dorsey - Page 6

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               retired member by the institution for any period, up to                
               a maximum of one-half of the difference between the                    
               member’s retired or retainer pay for that period and                   
               the active duty pay and allowances which the member                    
               would have received for that period if on active duty.                 
               Notwithstanding the limitation in the preceding                        
               sentence, the Secretary concerned may pay to the                       
               institution more than one-half of the additional amount                
               paid to the retired member by the institution if (as                   
               determined by the Secretary) the institution is in an                  
               educationally and economically deprived area and the                   
               Secretary determines that such action is in the                        
               national interest.  Payments by the Secretary concerned                
               under this paragraph shall be made from funds                          
               appropriated for that purpose.                                         
                    (2) Notwithstanding any other provision of law,                   
               such a retired member is not, while so employed,                       
               considered to be on active duty or inactive duty                       
               training for any purpose.                                              
               It has been held that no part of the amount received from a            
          school district by a retired military officer for services as a             
          JROTC instructor is excludable from gross income as a housing or            
          subsistence allowance.  Lyle v. Commissioner, 76 T.C. 668, 674-             
          678 (1981), affd. without published opinion 673 F.2d 1326 (5th              
          Cir. 1982); Bynam v. Commissioner, T.C. Memo. 2001-142; Tucker v.           
          Commissioner, T.C. Memo. 1999-373.  JROTC instructors are                   
          employed by the educational institutions in which they teach and            
          not by the Federal Government.  10 U.S.C. sec. 2031(d); Lyle v.             
          Commissioner, supra at 674; Bynam v. Commissioner, supra; Tucker            
          v. Commissioner, supra.  Accordingly, a JROTC instructor receives           
          income from the school as compensation for services rendered and            
          not by reason of that instructor’s status as a member or former             
          member of the Armed Forces.  Lyle v. Commissioner, supra at 674.            





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