               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                              01-60644
                          Summary Calendar
                       _____________________

HOLLAND E. BYNAM,

                                               Petitioner-Appellant,
                                versus


COMMISSIONER OF INTERNAL REVENUE,

                                               Respondent-Appellee.

_________________________________________________________________

                     Appeal from a Decison of
                    the United States Tax Court
                             (8397-00)


                           February 4, 2002

Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM:*

     Holland E. Bynam appeals an adverse determination by the

United States Tax Court.    On appeal, the only issue is whether a

retired military officer -- who serves as an instructor in the

Junior Reserve Officers’ Training Corps (JROTC) -- can claim

certain “qualified military benefits” as exclusions under 26 U.S.C.



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                  1
§ 134.     We hold that Bynam is not entitled to such exclusions.

Accordingly the tax court’s judgment is affirmed.

                                        I

     Bynam entered the Army in 1957 as a lieutenant and retired 26

years later as a colonel.             In August 1987, to supplement his

retirement pay, Bynam began working as a JROTC instructor in the

Houston Independent School District (HISD).          Since 1987, Bynam has

served continuously as an instructor or administrator of HISD’s

JROTC program.

     In    1998   Bynam    received   retirement   pay   in   the   amount   of

$46,320.    He also earned $50,997 as compensation for his work with

the JROTC program.        On his 1040 form -- as his total wages, salary,

and tips -- Bynam entered $33,923 instead of $50,997.                   Bynam

excluded $17,073 from his total wages because he was told             that he

was entitled to that much in military allowances.             Bynam computed

this amount in military allowances as if he were in active service.

     Bynam then filed his 1040 along with a letter from the

customer service department at the Internal Revenue Service that

stated he was correct in deducting the military allowances from his

gross income.

     On May 4, 2000, the IRS issued Bynam a tax deficiency notice.

The notice stated that Bynam owed $5,394 -- the tax due on the

$17,073 in military allowances he excluded from his gross income.

Bynam appealed the IRS’s decision to the tax court.           The   tax court



                                        2
ruled in favor of the IRS, holding that Bynam could not exclude

military allowances from his gross income.                Bynam appeals this

decision.

                                         II

       The Tax Code defines gross income as “all income from whatever

source derived.”          26 U.S.C. § 61(a).         The Code, however, also

explicitly defines certain items as excluded from “gross income.”

See,    for    example,    26   U.S.C.   §    101   (excluding    certain   death

benefits).       Qualified military benefits are excluded from gross

income.       26 U.S.C. § 134(a).    A qualified military benefit is “any

allowance or in kind benefit which ... is received by any member or

former member of the uniformed services of the United States ... by

reason of such member’s status or service as a member of such

uniformed services.         Id. at § 134(b)(1).

        Only     officers    entitled    to   “basic   pay”   are   entitled   to

allowances for quarters and subsistence.                37 U.S.C. §§ 402(a),

403a.    Furthermore, the only officers entitled to “basic pay” are

those on active duty or participating in full-time training.                   37

U.S.C. § 204(a).          Bynam is not on “active” duty nor is he engaged

in full-time training.          He also does not fulfill any of the other

criteria that would entitle him to “basic pay.”                  See 37 U.S.C. §

204(a). He is therefore not entitled to basic pay and consequently

is not entitled to allowances for housing or subsistence.                      In




                                         3
addition, Bynam points to no statutory provision that entitles

former officers to a variable housing allowance.

     Although we must find against Bynam, we sympathize with his

situation.    In a formal letter, the IRS told Bynam that he could

claim this exclusion.       After filing, Bynam was told the IRS (as

well as his accountant) had been mistaken. Given the complexity of

the tax code, it is not surprising that taxpayers often rely on the

advice of the IRS when deciding their eligibility for deductions,

exclusions, and exemptions.       It is hoped that the IRS will be more

careful      when   initially      addressing     taxpayer     inquiries.

Notwithstanding     the   IRS’s   mistake,   however,   the   tax   court’s

judgment is

                                                                AFFIRMED.




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