                        T.C. Memo. 2011-59



                     UNITED STATES TAX COURT



 DAVID DANIEL ROBISON, SR. AND LYDIA A. ROBISON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7765-09.               Filed March 10, 2011.



     David Daniel Robison, Sr., and Lydia A. Robison, pro sese.

     Carol-Lynn E. Moran, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     WELLS, Judge:   Respondent determined a deficiency of $2,866

in petitioners’ Federal income tax for the 2006 tax year.   The

issues we must decide are whether the disability retirement

payments petitioner husband received from the U.S. Office of

Personnel Management (OPM) are excludable from petitioners’
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income pursuant to section 104(a)(4), and whether respondent is

barred from determining a deficiency for petitioners’ 2006 tax

year because he issued closing letters for previous tax years

that accepted petitioners’ returns as filed.1

                          FINDINGS OF FACT

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of fact are incorporated in this

opinion by reference and are found accordingly.    At the time they

filed their petition, petitioners resided in Pennsylvania.

     Petitioner David Daniel Robison, Sr. (hereinafter

petitioner), served in the U.S. Marine Corps from 1966 until

1972.    From December 1966 until February 1968 he served in

Vietnam, where he sustained a variety of combat-related injuries.

He spent a year in the hospital and was later discharged from the

Marine Corps because of his injuries.

     Petitioner worked for the U.S. Postal Service from 1980

until he was forced to retire in 1992 as a result of the injuries

he had sustained while serving in Vietnam.    During the years

since he was forced to retire, petitioner has received a

retirement annuity from OPM.    During some of those years,

petitioners excluded the amount of that annuity from their gross

income.    Respondent examined petitioners’ returns for several of



     1
      All section references are to the Internal Revenue Code in
effect for the year in issue, unless otherwise indicated.
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the years before the year in issue, and each time, respondent

issued a closing letter accepting petitioners’ return as filed.

     During 2006, petitioner received retirement income of

$14,796 from OPM.   Petitioners did not report any of that income

on their 2006 Federal income tax return.   Petitioners contend

that the entire amount is excludable from their gross income

pursuant to section 104(a)(4).

                              OPINION

      Section 104(a)(4) excludes from gross income “amounts

received as a pension, annuity, or similar allowance for personal

injuries or sickness resulting from active service in the Armed

Forces of any country”.   Petitioner was forced to retire from the

U.S. Postal Service because of injuries sustained while serving

in the Armed Forces, and he contends that he therefore may

exclude from gross income the amount he receives as a retirement

annuity from OPM.

     In Haar v. Commissioner, 78 T.C. 864 (1982), affd. 709 F.2d

1206 (8th Cir. 1983), this Court first addressed the question of

whether an individual who retires from a civilian job because of

a disability resulting from military service and receives

disability payments from that civilian employer may exclude those

payments from his gross income.    In Haar, hearing loss sustained

as a result of the taxpayer’s service in the military forced him

to retire from his job as an auditor with the U.S. General
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Services Administration, and he subsequently received annuity

payments from the Civil Service Retirement and Disability Fund.

Although we noted that the ambiguous wording of section 104(a)(4)

provided some superficial support for the taxpayer’s exclusion,

we concluded that the wording was “overshadowed” by the fact that

the disability benefits under the Civil Service Retirement Act, 5

U.S.C. secs. 8331 et seq., were not designed to compensate for

military injuries.   Id. at 866.   Rather, the cause of the

disability was irrelevant when determining eligibility.       Id. at

866-867.   We held that, because the disability payments the

taxpayer received were not paid as compensation for personal

injuries or sickness incurred in military service, the taxpayer

was not entitled to exclude the disability payments under section

104(a)(4).   Id. at 867.

     This Court has consistently followed our holding in Haar in

numerous cases addressing whether various benefit payments under

Civil Service and public employee disability plans were eligible

for exclusion under section 104(a)(4).   See Reimels v.

Commissioner, 123 T.C. 245, 249-250 (2004) (and cases cited

thereat), affd. 436 F.3d 344 (2d Cir. 2006).   On facts very

similar to those of the instant case, we previously have held

that a taxpayer who contended that he was terminated by the U.S.

Postal Service because of injuries he received while serving in

the Armed Forces was not entitled to exclude Civil Service
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disability retirement payments from his income under section

104(a)(4).   See French v. Commissioner, T.C. Memo. 1991-417.     As

in French, we similarly conclude that petitioner is not entitled

to exclude the retirement annuity payments he received from OPM

from his gross income under section 104(a)(4).

     Petitioner also contends that, because respondent issued

closing letters and accepted petitioners’ returns as filed in

previous years, respondent should be barred from determining a

deficiency for petitioners’ 2006 tax year.      However, we have held

that where the Commissioner has overlooked the taxability of

certain items in previous years, he is not barred from taking a

different position in later years.       Rose v. Commissioner, 55 T.C.

28, 32 (1970).   Additionally, the Commissioner is not bound by a

closing letter he issued for a previous year.      See Kiourtsis v.

Commissioner, T.C. Memo. 1996-534 (and cases cited therein).

Consequently, we conclude that respondent is not barred from

determining a deficiency against petitioners for their 2006 tax

year.

     In reaching these holdings, we have considered all the

parties’ arguments, and, to the extent not addressed herein, we

conclude that they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                            Decision will be entered

                                      for respondent.
