543 F2d 725 Cohen v. Commissioner of Internal Revenue

543 F.2d 725

76-2 USTC P 9747

Lawrence J. COHEN and Marilyn P. Cohen, Appellants,

No. 75-1578.

United States Court of Appeals,
Ninth Circuit.

Oct. 20, 1976.

James J. McGannon (argued), of Regan & McGannon, Wichita, Kan., for appellants.

Donald H. Olson, Atty. (argued), of Tax Div., U. S. Dept. of Justice, Washington D. C., for appellee.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and SCHWARZER,* District Judge.


We affirm the Tax Court.1

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The taxpayers' argument that amounts withheld from a Civil Service employee's base pay and deposited to the Civil Service retirement and disability fund be deemed an "employer contribution" and thus not includable in the taxpayers' current gross income has been firmly rejected by the Third, Fourth, and Sixth Circuits. (Hogan v. United States (6th Cir. 1975) 513 F.2d 170; Megibow v. Commissioner (3d Cir. 1955) 218 F.2d 687; Miller v. Commissioner (4th Cir. 1944) 144 F.2d 287.) We expressly adopt the reasoning of Hogan v. United States, supra.


The Taxpayers' reliance on Pennie v. Reis (1889) 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426 is misplaced. Here, unlike Pennie, no forfeiture is involved. Moreover, Pennie was not a tax case, and we can find no analogy between the taxing scheme with which we are here concerned and the police officers' fund that engaged the Court's attention in Pennie.




Honorable William W. Schwarzer, United States District Judge, Northern District of California, sitting by designation


The Tax Court's opinion is reported at 63 T.C. 267 (1974)