Cohen v. C. I. R

Full title: LAWRENCE J. COHEN AND MARILYN P. COHEN, APPELLANTS, v. COMMISSIONER OF…

Court: United States Court of Appeals, Ninth Circuit

Date published: Oct 20, 1976

543 F.2d 725 (9th Cir. 1976)

Opinion

No. 75-1578.

October 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.

Appeal from the Commissioner of Internal Revenue.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and SCHWARZER,^_ District Judge.

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

PER CURIAM:

We affirm the Tax Court.¹

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

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.

AFFIRMED.