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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.
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Last modified: November 10, 2007