
    MILDRED W. RILEY v. THE UNITED STATES
    [No. 495-55.
    Decided December 4, 1957]
    
      Mr. Leonard Kaplan, for the plaintiff.
    
      Mr. Harlan Pomeroy, with, whom was Mr. Acting Assistant Attorney General John N. Stull, for the defendant. Mr. James P. Garland was on the brief.
   Madden, Judge,

delivered the opinion of the court:

The plaintiff is the widow of John C. Riley, a member of the District of Columbia Metropolitan Police Force who died in 1943. As Mr. Riley’s widow, the plaintiff received, pursuant to a statute, a monthly pension from the Policemen and Firemen’s Relief Fund, D. C. She included the sums so received in her income tax returns for the years 1950, 1951, and 1952, and paid income taxes accordingly, but later filed claims for refund which asserted that these sums did not constitute taxable income. Her claims for refund have not been granted, hence this suit.

The Internal Revenue Code of 1939, as amended, 26 U. S. C. 22, 1952 ed., contained the following provision:

Sec. 22. Gross Income — * * *
«í» H» «i»
(b) Exclusions from gross income.
The following items shall not be included in gross income and shall be exempt from taxation under this chapter:
»[♦ H» íí*
(5) * * * amounts received through accident or health insurance or under workmen’s compensation acts, as compensation for personal injuries or sickness, * * *

The plaintiff claims that the sums received by her as the widow of a policeman were, in the circumstances here present, exempt from income tax under the quoted statute. As appears from our findings, Mr. Eiley was disabled in line of duty and had been recommended for disability retirement. It is fair to infer that he would have been retired for disability as soon as the necessary procedural steps had been taken, and that such retirement did not occur only because he died less than a month after the recommendation was made.

Section 4r-507 of the District of Columbia Code (1951 ed.), provides for retirement for disability, on half pay, of policemen. The same section provides for a pension for the widow of any policeman who dies from any cause, before or after retirement.

The disability retired pay of a policeman, paid pursuant to the District of Columbia Code, is exempt from income tax under section 22 (b) (5) of the Internal Eevenue Code, supra, because it is the legal equivalent of workmen’s compensation. Frye, et al. v. United States, 72 F. Supp. 405. But the provision in the code for pensions for widows of policemen does not make their payment dependent upon the cause of the husbands’ deaths. If the plaintiff’s husband had died of natural causes, her pension would have been the same as it was, and as it would have been if he had in fact been, before his death, retired for disability.

We see no basis for the application of section 22 (b) (5) of the Internal Eevenue Code to the payments received by the plaintiff, and her petition will be dismissed.

It is so ordered.

Maris, Circuit Judge, sitting by designation; Whitaker, Judge, LittletoN, Judge; and JoNes, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Richard H. Akers, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is the widow of John C. Riley, Private, District of Columbia Metropolitan Police Department, who died on June 2, 1943, from hypertensive cardiovascular renal disease, and who will hereinafter sometimes be referred to as the “decedent”.

2. On May 4, 1943, the decedent was examined by the Board of Police and Fire Surgeons of the District of Columbia who recommended that he be retired at 100 percent disability. At the time of his death on June 2, 1943, the decedent’s status was that of a policeman on active duty but absent from work on sick leave.

3. On July 16, 1943, upon application by the plaintiff dated June 3, 1943, the Board of Commissioners of the District of Columbia issued the following order:

Ordered:
That Mildred W. Riley, widow of the late John C. Riley, a member of the Metropolitan Police Department, D. C., is hereby granted relief from the Policemen and Firemen’s Relief Fund, D. C., to take effect on and after June 3,1943, payable as follows:
To Mildred W. Riley $60 per month during widowhood.

While, as shown above, the amount originally ordered to be paid to the plaintiff was $60 a month, that amount was increased in 1949 by section 507 of Title 4 of the District of Columbia Code to $125 a month; and she received the increased amount, that is, $1,500 a year, for each of the years 1950, 1951, and 1952, from the Policemen and Firemen’s Relief Fund.

4. In her income tax returns for 1950, 1951, and 1952, the plaintiff reported the amount of $1,500 received from the Policemen and Firemen’s Relief Fund, as shown above, as part of her taxable income for each of those years and paid income taxes upon such amounts.

5. On November 27, 1953, tbe plaintiff filed amended returns for each of the years 1950, 1951, and 1952, in which she excluded from taxable income for each such year the $1,500 referred to above as having been received from the Policemen and Firemen’s Eelief Fund, and in such returns made claim for the refund of the amounts by which the taxes were reduced on account of the exclusion of $1,500 from income for each of the years, namely, $256.04 for 1950, $345.02 for 1951, and $385.14 for 1952. A portion of the claim for 1951 was allowed for reasons not here material. The balance of such claim for 1951 and the claims for 1950 and 1952 have neither been allowed nor formally disallowed.

6. The decedent was allowed sick leave in excess of thirty days a year during the years 1931, 1934 through 1938, and 1940 through 1943. The excess of sick leave for such years as well as the payment of bills for a specialist in 1935 was authorized by the Board of Surgeons of the Police Department. Such excess leave was authorized by the Board of Surgeons in accordance with the Police Manual which provided that in no case would sick leave be allowed any member of the force in excess of thirty days a year except when the sick time was in direct consequence of injury received or disease contracted in the actual performance of duty.

7. The parties have stipulated that if the Court finds that the amounts received by the plaintiff for 1950, 1951 and 1952, as set forth in finding 3, are tax exempt as claimed in the petition, judgment should be entered for the plaintiff in the amount of $928.53 together with interest thereon as provided by law.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is therefore dismissed.  