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KANE v. U.S.

No. 93-5139.

43 F.3d 1446 (1994)

John L. KANE, Jr., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

United States Court of Appeals, Federal Circuit.

December 29, 1994.

Attorney(s) appearing for the Case

James M. Lyons, Rothgerber, Appel, Powers & Johnson, Denver, CO, argued, for plaintiff-appellant. With him on the brief, was James R. Walker.

Regina S. Moriarty, Atty., Dept. of Justice, of Washington, DC, argued, for defendant-appellee. With her on the brief, were Loretta C. Argrett, Asst. Atty. Gen., Gary R. Allen and David English Carmack, Attys. Of counsel, was Edward T. Perelmuter.

Before RICH, PLAGER, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

John L. Kane, Jr., appeals from the decision of the United States Court of Federal Claims granting the government's motion to dismiss his claim for a tax refund. Kane v. United States, 28 Fed.Cl. 10 (1993). Because a judge's disability retirement pay under 28 U.S.C. § 372(a) (1988) is not excludable from gross income under § 104(a)(1) of the Internal Revenue Code, 26 U.S.C. § 104(a)(1) (1988), we affirm.

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