Larry J. and Catherine E. France - Page 16

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                    4.   Sections 104(a)(3) and 105                                   
               Section 104(a)(3) generally excludes from gross income                 
          amounts received by an employee through employer-provided                   
          accident or health insurance for personal injuries or sickness,             
          except to the extent such amounts are attributable to employer              
          contributions which were not includable in the gross income of              
          the employee.  Section 105(a) is essentially the mirror image of            
          section 104(a)(3), and, subject to two exceptions, includes in              
          gross income of an employee those amounts not excluded under                
          section 104(a)(3).                                                          
               In the instant case, petitioner contributed a percentage of            
          his salary to the ERS on an after-tax basis prior to October 1,             
          1989, and on a pre-tax basis thereafter.  The ERS calculated the            
          nontaxable portion of petitioner’s taxable year 2000 ordinary               
          disability retirement benefits attributable to his after-tax                
          contributions to be $255, and respondent has allowed petitioners            
          to exclude this amount from gross income.  The remaining portion            
          of petitioner’s ordinary disability retirement benefits is                  
          attributable to contributions by Baltimore County that were not             
          included in petitioner’s gross income, and to “pick up”                     
          contributions under section 414(h)(2) made by Baltimore County              
          that were treated as employer contributions and not included in             
          petitioner’s gross income.  Accordingly, petitioners are not                
          entitled to exclude under section 104(a)(3) the remaining portion           






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