Sandrea Maryann and Robert Maynard Woehl - Page 6




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          workmen’s compensation act which provides compensation to                   
          employees for personal injuries or sickness incurred in the                 
          course of employment.”  Sec. 1.104-1(b), Income Tax Regs.  The              
          regulations also provide that section 104(a)(1) “does not apply             
          to a retirement pension or annuity to the extent that it is                 
          determined by reference to the employee’s age or length of                  
          service, or the employee’s prior contributions, even though the             
          employee’s retirement is occasioned by an occupational injury or            
          sickness.”  Sec. 1.104-1(b), Income Tax Regs.                               
               Respondent argues that pursuant to section 1.104-1(b),                 
          Income Tax Regs., the distributions are not excludable from gross           
          income under section 104(a)(1) because petitioner has stipulated            
          that the distributions in this case were determined with                    
          reference to petitioner’s length of service.  Respondent contends           
          that Benjamin v. Commissioner, T.C. Memo. 1993-575, is directly             
          on point.                                                                   
               In Benjamin, the taxpayer was an accountant employed by the            
          State of California who incurred a medical disability in the                
          course and scope of his employment.  Benjamin v. Commissioner,              
          supra.  The taxpayer was subsequently forced to retire, and                 
          CalPERS determined that he was eligible for disability                      
          retirement.  Although the taxpayer reported the benefit payments            
          that he received from CalPERS on his return, he failed to include           
          them in his gross income.  This Court relied on section 1.104-              







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