- 5 - 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-Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 10, 2007