- 7 -
In Lyle v. Commissioner, supra at 674-675, the Court
explained why retired members serving as JROTC instructors do not
receive nontaxable “allowances”. Only members of the military
who are entitled to receive “basic pay” are entitled to an
allowance for subsistence, in lieu of meals in kind, and a basic
allowance for quarters, unless quarters provided by the military
are occupied by the member. See 37 U.S.C. secs. 402 and 403
(2000). Petitioner did not qualify for these allowances because
she did not receive “basic pay”. She did not receive “basic pay”
because she was not on “active duty”. See 37 U.S.C. sec. 204
(2000). Petitioner was not on “active duty” because, as a
retired military JROTC instructor, she “is not, while so
employed, considered to be on active duty or inactive duty
training for any purpose.” 10 U.S.C. sec. 2031(d)(2).
Petitioners object to the Court’s “reliance” on the language
of 10 U.S.C. section 2031(d)(2). They argue that the provision
is in contravention of other Federal rules. Petitioners produced
a memorandum dated September 9, 1993, from the Department of the
Army serving notice that retired military are allowed to use
“government housing”. They contend that this proves petitioner
is on “active duty” and entitled to allowances.
In Army Regulation (AR) 210-50 (revision effective March 26,
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 10, 2007