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statute does not qualify, the fact that the taxpayer’s injury was
in fact work related is irrelevant. Id.
The ordinary disability retirement benefit awarded to
petitioner by the Board of Appeals under Baltimore County Code
section 23-53 (1988), does not restrict disability payments to
cases of work-related injury or sickness; rather, such retirement
benefits are available under that section to any member who has
had 5 or more years of creditable service, provided such member
meets the other requirements regarding incapacitation. Ordinary
disability retirement benefits under Baltimore County Code
section 23-53 (1988), are thus determined by reference to a
member’s length of service, not by reference to an injury
occurring on the job. See sec. 1.104-1(b), Income Tax Regs.
Accordingly, the ordinary disability retirement benefits received
by petitioners in taxable year 2000 do not qualify for the
exclusion from gross income provided in section 104(a)(1).
3. Section 104(a)(2)
Section 104(a)(2) excludes from gross income “the amount of
any damages * * * received (whether by suit or agreement and
whether as lump sums or as periodic payments) on account of
personal physical injuries or physical sickness”. “The term
‘damages received (whether by suit or agreement)’ means an amount
received (other than workmen’s compensation) through prosecution
of a legal suit or action based upon tort or tort type rights, or
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