
    Stephen HAYDEN, Petitioner—Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 03-73668.
    Docket No. 10441-01.
    United States Court of Appeals, Ninth Circuit.
    Submitted April 14, 2005.
    
    Decided April 18, 2005.
    Neal J. Shapiro, Esq., Bernick and Lifson, P.A., Minneapolis, MN, for Petitioner-Appellant.
    Charles S. Casazza, Esq., Samuel A. Lambert, Eileen J. O’Connor, Esq., U.S. Department of Justice, Washington, DC, for Respondent-Appellee.
    Before GOODWIN, O’SCANNLAIN, and KLEINFELD, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Stephen Hayden appeals a tax court decision upholding the Commissioner’s determination of deficiencies in his 1997 and 1998 federal income tax in the amounts of $102,731 and $26,347, respectively.

Because the long-term disability insurance payments that Hayden received in 1997 and 1998 were calculated with reference to his pre-disability earnings rather than to the nature of his injury and his eligibility to receive benefits was contingent upon his absence from work, the payments constituted gross income under 26 U.S.C. § 105(a) and did not qualify for exception under 26 U.S.C. § 105(c). See Beisler v. Commissioner, 814 F.2d 1304, 1307-08 (9th Cir.1987) (en banc). The tax court correctly upheld the Commissioner’s deficiency determination.

AFFIRMED 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     