Docket No. 7175. | B.T.A. | Oct 31, 1927
Lead Opinion
The facts in this proceeding are not in dispute and the only question presented for determination is whether the compensation or pay received by the petitioner during the years 1921, 1922, and 1923, as a retired officer of the Regular Army of the United States, is subject to the Federal income tax. The petitioner claims it is a pension for service in time of war and is exempt from taxation under section 213(b) (9) of the Revenue Act of 1921, which provides that gross income “ Does not include the following items, which shall be exempt from taxation under this title: * * * (9) Amounts received as compensation, family allotments and allowances under the provisions of the War Risk Insurance and the Vocational Rehabilitation Acts, or as pensions from the United States for service of the beneficiary or another in the military or naval forces of the United States in time of war.”
Section 210 of the Revenue Act of 1921 provides that a tax at the rates therein prescribed shall be levied, collected and paid on the net income of every individual in excess of the credits provided by section 216 of that Act. By section 213 all amounts received from certain sources therein enumerated are exempt from taxation and are not included in income as defined by the Act. It seems clear, therefore, that all income from whatever source derived, not specifically exempt, is included within the scope of a taxing act, unless by reason of some Constitutional or legal inhibition it may not be reached by the taxing power of the United States. We therefore hold that unless the petitioner comes within the exemption provided by section 213, the tax herein must be sustained.
Upon consideration of the facts and the arguments presented in support of the petitioner’s contention, we must conclude that the petitioner’s pay as a retired officer in the United States Army is not a pension for services in the military or naval forces of the United
There is, therefore, a manifest difference in the two kinds of retirement, namely, retiring from active service and retiring wholly and altogether from the service * * * In the former case the compensation is continued at a reduced rate and the connection is continued, with retirement from active service only.
A retired officer receives the retired pay whether his active service was in peace or war, whether he retired for age after a long and strenuous career on the battlefield, or within a month after he was commissioned for some physical disability not even remotely connected with war. 'The petitioner receives pay as a retired officer of the Army, not because he served in time of war but because he served until he arrived at the age provided by law for his retirement from active duty. He would have retired at the same age and date and would draw the same retired pay if his whole active service had been spent in an era of continuous peace. In our opinion the petitioner’s claim for exemption must be denied.
Judgment will be entered for the respondent.