In Uncategorized on 10/16/2017 at 14:44

That obliging jurist Judge David Gustafson is bemused by the economy of expression above-cited in Anthony Sean Martinez, Docket No. 14385-15, filed 10/16/17.

It seems Mr Martinez got his VA disability rating (a sine qua non for nontaxability of certain military service pensions; see my blogpost “Disabled Veteran,” 12/22/14) before he got the lump sum payment at issue. IRS, relying on St. Clair v. US, 778 F. Supp. 894 (1991), acq. 1992-06, 1991 WL 772483 says that St. Clair got his rating after he got the money, so somehow the timing makes the difference.

The above-cited economy of citation omits any reference to Section 104(a)(4) and (b)(2)(D), but IRS concedes the money that Mr Martinez got was for “personal injuries or sickness resulting from active service in the armed forces of any country.” Order, at pp. 1-2.  And the VA blessed the same.

The IRM Internal Revenue Manual, part (12-09-2014) is likewise parsimonious with Section 104, but reaches the St. Clair conclusion.

And Judge Gustafson cites IRS Publication 4491 (“VITA/TCE Training Guide”) to the same effect.

Remember, neither the IRM nor the Publication are precedential, confer any rights on the taxpayer, bind the Courts or the IRS (except maybe in New Jersey; see the Jersey Boys’ latest newsletter).

But the Air Force, from which Mr Martinez was separated, seems to think his personal injury or sickness wasn’t combat related. Judge Gustafson is entirely too genteel to give IRS a Taishoff “Oh, Please!” Instead, “This contention is arguably at odds with St. Clair, the Commissioner’s Action on Decision acquiescing to it, the IRM provisions cited here, and Publication 4491.” Order, at p. 3.

Now maybe IRS doesn’t entirely acquiesce in St. Clair after all, or maybe Judge Gustafson misunderstands IRS’ logic (but don’t bet the lunch money on that one).

And maybe IRS could tell us all why “the UAVs and the video equipment by which their operators view their effects are ‘instrumentalit[ies] of war’ for purposes of section 104(b)(3)(B).” Order, at p. 4.

Or maybe Mr Martinez can tell us why in a supplemental brief, if he wishes.

A UAV is an unmanned aerial vehicle; that’s a “drone” to you civilians. The USAF uses these extensively, often to break things and hurt people terminally. And a young man with whom I had a slight acquaintance operated them in Afghanistan for a couple deployments (hi, Judge Holmes). And what it did to him emotionally shouldn’t be done to anyone.

So, IRS, lay it on us. I cain’t hardly wait.

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