David A. Popper and Claudette B. Stulz - Page 11




                                       - 10 -                                         
               Petitioners may be unaware of two Federal District Court               
          opinions issued before this Court’s decision in Lyle.  In Scott             
          v. United States, 33 AFTR 2d 74-858, 74-1 USTC par. 9281 (D.S.C.            
          1973), the District Court found that 10 U.S.C. section 2031                 
          merely sets out a formula to calculate the salary of retired                
          members serving as JROTC instructors.  It further found that                
          military “allowances” are payable only to members entitled to               
          “basic pay”, only active duty members are entitled to basic pay,            
          and that the taxpayer, retired from the military, was not on                
          active duty while serving as a JROTC instructor.  The decision by           
          the Federal District Court in Sweeney v. United States, 34 AFTR             
          2d 74-5700, 74-2 USTC par. 9672 (N.D. Ga. 1974), discusses                  
          favorably and is in accord with Scott.  See also Tucker v.                  
          Commissioner, T.C. Memo. 1999-373 (even where 100 percent of                
          taxpayer’s salary was reimbursed under special condition by the             
          Federal Government, JROTC salary not excludable).  Petitioners              
          have pointed to no court decision to support their position.                
               In view of the foregoing, the Court holds that no portion of           
          the JROTC pay that petitioner received from the Township is                 
          excludable from gross income.                                               













Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next 

Last modified: November 10, 2007