No. 88-1808.

877 F.2d 449 (1989)

John Roberts MARTIN; Shirley Mae Martin; Bernard J. Spanski; and Margaret L. Spanski, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided June 5, 1989.

Attorney(s) appearing for the Case

John E. Rogers (argued), Alexandria, Va., for John Roberts Martin, Shirley Mae Martin, Bernard J. Spanski, and Margaret L. Spanski, Petitioners-Appellants.

William F. Nelson, I.R.S., David I. Pincus (argued), Nancy G. Morgan, U.S. Dept. of Justice, Tax Div. Appellate Section, Gary R. Allen, and William S. Rose, Jr., Asst. Attorney Gen., Dept. of Justice, Tax Div., Washington, D.C., for C.I.R., respondent-appellee.

Before KEITH and KENNEDY, Circuit Judges; and McQUADE, District Judge.

KENNEDY, Circuit Judge.

Taxpayers, John Roberts Martin and Bernard J. Spanski,1 appeal from the United States Tax Court's decision2 upholding the Commissioner's assessment of taxes on benefits they received under Title VII of the Northeast Rail Service Act as terminated Consolidated Rail Corporation (ConRail) employees. Taxpayers concede that the payments are includable in gross income under section 61,

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