De Paolis v. Commissioner

69 T.C. 283, 1977 U.S. Tax Ct. LEXIS 18

• Court: United States Tax Court
• Decided: November 28, 1977
• Docket: Docket No. 1227-76
• Status: Published

Opinions

OPINION

Dawson, Judge:

Respondent determined a deficiency of $268.06 in petitioners’ Federal income tax for the year 1972. The only issue presented for decision is whether petitioner Thomas A. DePaolis, an Air Force officer who retired on disability prior to reaching mandatory retirement age, is entitled to a retirement income credit of $268 for the year 1972 under the provisions of section 37, I.R.C. 1954,¹ for income received in excess of the claimed sick pay exclusion provided by section 105(d).

All of the facts are stipulated and are so found. The pertinent facts are summarized below.

Thomas A. DePaolis and Aurora A. DePaolis are husband and wife whose legal residence was in Oceanside, Calif., when they filed their petition in this case. They filed their joint Federal income tax return for the year 1972, and an amended return for that year, with the Western Service Center, Ogden, Utah.

Thomas A. DePaolis (petitioner) retired on physical disability, pursuant to 10 U.S.C. 1201, from the United States Air Force on September 1, 1967, with the rank of lieutenant colonel. He retired with a 10-percent disability rating. He then had 23 years, 9 months, and 28 days of active military service for the purposes of retirement.²

The mandatory retirement age for a lieutenant colonel in the Air Force is the earlier of 40 years³ of service or 60 years of age. Petitioner was born on January 17, 1918, and at the time of his retirement on disability from the Air Force he was 49 years of age.

On his 1972 Federal income tax return the petitioner deducted $5,200 as “sick pay” under the provisions of section 105(d) of the Code.⁴ A retirement income credit of $137 was also claimed on the return. On his amended Federal income tax return for 1972 the petitioner increased the claimed retirement income credit to $268.

In his statutory notice of deficiency dated January 8, 1976, respondent disallowed the claimed retirement income credit on the ground that petitioner’s “earned income exceeds the maximum amount of retirement income.”

Petitioner contends that he is entitled to the retirement income credit on all amounts received in excess of the sick pay exclusion. To the contrary, respondent’s position is that when a former military officer retires on disability prior to reaching mandatory retirement age, he is not entitled to a retirement income credit on amounts received in excess of the sick pay exclusion.

The issue confronting us in this case has not been previously decided by any court.⁵ Respondent relies on Rev. Rui. 69-12, 1969-1 C.B. 23, which ruled that the amount of a disability annuity received by a Federal employee under the Civil Service Retirement Act prior to normal retirement age that exceeds the sick pay exclusion under section 105(d) of the Code does not qualify as retirement income under section 37(c)(2). This was based on the retirement income credit which was in effect prior to the year 1977. The rationale is that the disability annuity payments received by a Federal employee who has retired prior to normal retirement age are treated as “wages or payments in lieu of wages” for the purposes of section 105(d), and do not qualify as “retirement income” within the meaning of section 37(c)(2).

Section 37⁶ provides a credit against the tax imposed by chapter 1 of the Internal Revenue Code of 1954 in the case of an individual who receives in the taxable year retirement income as defined in section 37(c) and who meets the eligibility requirements of section 37(b).

Section 37(c)(2) defines “retirement income” in the case of an individual who has not attained the age of 65 before the close of the taxable year as meaning income from pensions and annuities to the extent included in gross income, but only to the extent such income does not represent compensation for personal services rendered during the taxable year.

For taxable years beginning after December 31, 1954, amounts received from the retirement system established by the United States for members of the Armed Forces of the United States are included within the definition for retirement income. Sec. 1.37-3(a)(3), Income Tax Regs. The legislative history relating to this change made by Pub. L. 299 is set forth in S. Rept. 1142,84th Cong., 1st Sess. 1(1955), as follows:

Your committee’s bill would remove the discrimination existing under present law against members of the Armed Forces by allowing them to claim the retirement income tax credit under the same circumstances and to the same extent as retired civil servants and others under a public retirement system. * * * [Emphasis supplied.]

Thus, to carry out the intent of Congress, section 37 should be applied to members of the Armed Forces who retire on disability prior to mandatory retirement age in same manner as it applies to Federal civil servants.

Although the literal language of section 37(c)(2) (now section 37(e)(4)(B)) would seem to favor the petitioner, we think the words “pensions and annuities” as used in section 37 refer only to those whose taxability is determined under section 72.

Disability annuity payments received by a Federal employee before normal retirement age under the Civil Service Retirement Act are treated as “wages or payments in lieu of wages” for the purposes of section 105(d).⁷ Section 1.105-4(a)(3)(i)(A), Income Tax Regs., provides, in part, that if a plan provides that an employee, who is absent from work on account of a personal injury or sickness, will receive a disability pension or annuity as long as he is disabled, section 105(d) is applicable to any payments that such an employee receives under the plan before he reaches normal retirement age.

Section 1.72-15(b), Income Tax Regs., provides the general rule that section 72 of the Code does not apply to any amount received as an accident or health benefit, and the tax treatment of any such amount shall be determined under sections 104 and 105.

All of the disability annuity ($9,130) received by the petitioner is considered to be “wages or payments in lieu of wages” when received prior to his mandatory retirement age. Therefore, it is governed by the provisions of section 105(d). For tax purposes the disability annuity cannot be fractured into part “payments in lieu of wages” and part “retirement income.” There must be consistent treatment. The provisions of section 72 regarding the classification of amounts received as income from pensions and annuities do not become effective until he reaches the mandatory retirement age.

Usually when a member of the Armed Forces reaches retirement age, what he receives in practical effect is a pension or an annuity. This petitioner would have received “retired pay” if he had chosen to retire for length of service under 10 U.S.C. 8911. But he did not do so, and he did not receive retired pay. Instead, as a consequence of his partial disability, he received “wage continuation” benefits to compensate him for being unable to work. These “payments in lieu of wages” qualified him for the “sick pay” exclusion until the time he would ordinarily have retired. In our judgment we doubt whether Congress ever intended to permit a double tax benefit by allowing a taxpayer who receives wage continuation benefits to receive the added benefit of the credit for receiving retired pay. Such a result would be incongruous with the interworkings of sections 37, 72, and 105(d). The mere incantation of the words of section 37 does not provide an abracadabra solution to the issue presented.

Accordingly, we hold that the amount the petitioner received in excess of the sick pay exclusion provided by section 105(d) does not qualify as retirement income within the meaning of section 37(c)(2).

Decision will be entered for the respondent.

Reviewed by the Court.

1 All statutory references herein are to the Internal Revenue Code of 1954, as amended and in effect for the year in issue, unless otherwise indicated.

2 Although eligible, the petitioner did not retire under the longevity provisions of 10 U.S.C. 8911.

3 See 10 U.S.C. 8924. The provisions of 10 U.S.C. 8916 under which a lieutenant colonel is required to retire on the 30th day after he completes 28 years of service are not applicable to the petitioner.

4 Petitioner has not claimed an exclusion for 10 percent of his disability pay ($9,130 received from the Air Force) under sec. 104(a)(4) and sec. 1.104-l(e)(l), Income Tax Regs. He did exclude from income $874.72 received directly from the Veterans’ Administration. He also claimed, and respondent allowed, the full “sick pay” exclusion under sec. 105(d).

5 In Wilson v. United States, 376 F.2d 280 (Ct. Cl. 1967), the defendant conceded the plaintiff was entitled to a retirement income credit by virtue of receiving disability retirement pay in 1959, 1960, and 1961 as a retired officer of the U.S. Navy.

6 SEC. 37. RETIREMENT INCOME.

(a) General Rule. — In the case of an individual who has received earned income before the beginning of the taxable year, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to 17 percent, in the case of a taxable year beginning in 1964, or 15 percent, in the case of a taxable year beginning after December 31,1964, of the amount received by such individual as retirement income (as defined in subsection (c) and as limited by subsection (d)); but this credit shall not exceed such tax reduced by the credits allowable under section 32(2) (relating to tax withheld at source on taxfree covenant bonds), section 33 (relating to foreign tax credit), and section 35 (relating to partially tax-exempt interest).

(b) Individual Who Has Received Earned Income. — For purposes of subsection (a), an individual shall be considered to have received earned income if he has received, in each of any 10 calendar years before the taxable year, earned income (as defined in subsection (g)) in excess of $600. A widow or widower whose spouse had received such earned income shall be considered to have received earned income.

(c) Retirement Income. — For purposes of subsection (a), the term “retirement income” means—

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(2) in the case of an individual who has not attained the age of 65 before the close of the taxable year, income from pensions and annuities under a public retirement system (as defined in subsection (f)),

to the extent included in gross income without reference to this section, but only to the extent such income does not represent compensation for personal services rendered during the taxable year.

(d) Limitation on Retirement Income. — For purposes of subsection (a), the amount of retirement income shall not exceed $1,524 less—

(1) in the case of any individual, any amount received by the individual as a pension or annuity—

(A) under title II of the Social Security Act,

(B) under the Railroad Retirement Acts of 1935 or 1937, or

(C) otherwise excluded from gross income, and

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(e) Rule for Application op Subsection (d)(1). — Subsection (d)(1) shall not apply to any amount excluded from gross income under section 72 (relating to annuities), 101 (relating to life insurance proceeds), 104 (relating to compensation for injuries or sickness), 105 (relating to amounts received under accident and health plans), 402 (relating to taxability of beneficiary of employees’ trust), or 403 (relating to taxation of employee annuities).

(f) Public Retirement System Defined. — For purposes of subsection (c)(2), the term “public retirement system” means a pension, annuity, retirement, or similar fund or system established by the United States, a State, a Territory, a possession of the United States, any political subdivision of any of the foregoing, or the District of Columbia.

(g) Earned Income Defined. — For purposes of subsections (b) and (d)(2), the term “earned income” has the meaning assigned to such term in section 911(b), except that such term does not include any amount received as a pension or annuity.

7 SEC. 105. AMOUNTS RECEIVED UNDER ACCIDENT AND HEALTH PLANS.

(a) Amounts Attributable to Employer Contributions. — Except as otherwise provided in this section, amounts received by an employee through accident or health insurance for personal injuries or sickness shall be included in gross income to the extent such amounts (1) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (2) are paid by the employer.

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(d) Wage Continuation Plans. — Gross income does not include amounts referred to in subsection (a) if such amounts constitute wages or payments in lieu of wages for a period during which the employee is absent from work on account of personal injuries or sickness; but this subsection shall not apply to the extent that such amounts exceed a weekly rate of $100. * * *