Moholy

This is a tax refund suit. In a joint return for the taxable year 1949 plaintiffs included as income:

(a) Nine Hundred ($900.00) Dollars received by Philip Moholy as disability pay from the City and County of San Francisco. Moholy, a Captain in the City Fire Department, was thrown from a fire truck while answering an alarm. He was incapacitated for 68 days.

(b) Four Hundred Eighty-nine and 17/100 ($489.17) Dollars received as sick pay. Captain Moholy was ill with bronchitis and unable to work for a period of 35 days. This money was paid to him pursuant to the provisions of the City Charter, Ordinances and Regulations. Plaintiffs filed a claim for refund with the Commissioner for the tax attributable to these two amounts. The Commissioner did not act upon the claim during the statutory six months.

Plaintiff contends that these amounts are excludable from gross income under Section 22(b) (5) of the Internal Revenue Code, 26 U.S.C.A. § 22 (b) (5) as it existed in 1949. That section provided as follows:

The plaintiff contends and the government has conceded that the Nine Hundred ($900.00) Dollars received as a result of Captain Moholy’s injury consti *33 tutes “amounts received…