106 T.C. No. 23
UNITED STATES TAX COURT
LEAR EYE CLINIC, LTD., ET AL.,1 Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket Nos. 13406-90, 19117-90, Filed June 10, 1996. 177-91.
Gregory A. Robinson, Brad S. Ostroff, and Neil H. Hiller,
for petitioners.
Anne W. Durning, for respondent.
Held, for purposes of determining the limitation under sec. 415(b), I.R.C., on benefits of a plan, the term "service with the employer" shall include service with businesses that antedate the plan sponsor where the transition results in a mere technical change in the employment relationship and continuity otherwise
1 Cases of the following petitioners are consolidated herewith: Lear Eye Clinic, Ltd., An Arizona Professional Corporation, docket No. 19117-90; and Brody Enterprises, Inc., docket No. 177-91. * This opinion supplements our previously filed opinion in Citrus Valley Estates, Inc. v. Commissioner, 99 T.C. 379 (1992), affd. in part and remanded in part 49 F.3d 1410 (9th Cir. 1995). 2
exists in the substance and administration of the business. Held, further, in applying the foregoing to Lear, service with a sole proprietorship, which was incorporated and subsequently sponsored the plan, will count as service with the employer. Held, further, in Brody Enterprises, service with an alleged sole proprietorship and a law firm, neither of which had any continuous relationship to the sponsor of the plan, does not constitute service with the employer.
SUPPLEMENTAL FINDINGS OF FACT AND OPINION
CLAPP, Judge: These cases are before the Court on remand
from the U.S. Court of Appeals for the Ninth Circuit for further
consideration consistent with that court's opinion. Citrus
Valley Estates, Inc. v. Commissioner, 49 F.3d 1410 (9th Cir.
1995), affg. in part and remanding in part 99 T.C. 379 (1992).
Subsequent to the remand of these cases, the parties filed a
stipulation of facts (supplemental stipulation of facts) and
briefs relating to the issue on remand.
The issue for decision on remand is whether the plan
participants properly counted their previous employment towards
the section 415(b) maximum benefit limitations. We hold that the
participant in the Lear Eye Clinic plan properly counted his
previous employment, but the participant in the Brody Enterprises
plan did not.
All section references are to the Internal Revenue Code as
in effect for the years in issue, and all Rule references are to 3
the Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
FINDINGS OF FACT
In this opinion, we incorporate by reference the facts set
out in our opinion in Citrus Valley Estates, Inc. v.
Commissioner, 99 T.C. 379 (1992). We set forth and discuss in
this opinion findings of fact arising from the supplemented
record. We also incorporate by reference the supplemental
stipulation of facts.
Lear Eye Clinic, Ltd.
In 1975, Samuel Pallin (Pallin) commenced practice as an
ophthalmic physician in Phoenix, Arizona. His practice grew over
the years, offering various medical procedures performed by
Pallin or other physicians in the practice. He practiced as a
sole proprietor from 1975 until October 1, 1979. From sometime
in 1978 through October 1, 1979, the proprietorship employed
Gerald Walman (Walman) as an associate physician. On October 1,
1979, Pallin and Walman incorporated Lear Eye Clinic, Ltd.2
(Lear). Pallin and Walman owned 51 percent and 49 percent,
respectively, of the Lear stock. The administration of the
medical practice and Pallin's duties and responsibilities did not
change as a result of the formation of Lear. Nor did the
2 Pallin and Walman incorporated the Eye Center, Ltd., and later changed the name to Lear Eye Clinic, Ltd. For convenience, the term Lear refers to the Eye Center, Ltd., as well as Lear Eye Clinic, Ltd., unless otherwise indicated. 4
practice's staff, physicians, or patients change due to the
formation of Lear.
Effective October 1, 1984, Lear adopted a defined benefit
plan (the Lear plan). Pallin was the only participant in the
plan. The Lear plan's enrolled actuary used the following
information for Pallin for purposes of the actuarial
calculations:
Date of birth 5/8/41 Date of spouse's birth 4/2/46 Date of hire 10/1/793 Date of entry into the plan 10/1/84
On Form 5302, Census, attached to Form 5300, Application for
Determination for Defined Benefit Plan (Form 5302), Lear declared
that Pallin had 6 years of service with the employer as of
September 30, 1985.
In 1985, Pallin and Walman decided to sever their individual
medical practices. To accomplish this, Lear formed a subsidiary
which held Walman's portion of the practice and then spun the
subsidiary off to Walman. Pallin retained ownership of Lear.
On September 4, 1986, Lear received a favorable
determination letter from respondent qualifying the Lear plan
under section 401(a). As of September 30, 1986, Lear had 25
employees. Of those employees, all but Pallin were excluded or
ineligible to participate in the Lear plan. The terms of the
3 However, the actuary included Pallin's service as a sole proprietor from 1975 in his sec. 415(b) computation. 5
Lear plan limit the benefits payable under the plan to those
allowable under section 415.
Lear adopted a money purchase plan effective October 1,
1979. The money purchase plan was restated in its entirety as of
October 1, 1984, and again as of January 1, 1988.4
Brody Enterprises, Inc. (Brody Enterprises)
In the summer of 1969, Marvin D. Brody (Brody) began working
as an estate and gift tax examiner for the Internal Revenue
Service (IRS) in Chicago, Illinois. Brody worked with the IRS
until May 1973. While employed with the IRS, Brody was covered
by the Civil Service Retirement System. Brody was not covered by
any other retirement plan from 1969 through September 1977.
From May 1973 to September 1977, Brody worked as an
associate attorney with the law firm of Altheimer & Gray in
Chicago, Illinois. In September 1977, Brody moved from Chicago
to Phoenix, Arizona, and began working in the law firm of Ehmann
& Waldman, P.C.
In late 1978 or early 1979, Ehmann, Waldman, and Brody
formed Ehmann, Waldman & Brody, P.C. (EWB P.C.) with each owning
one-third of the shares of the company. EWB P.C. had three
retirement plans: (1) The Pension Plan, a money purchase pension
plan adopted in 1971 and still in existence, (2) the Profit
4 The parties have not elaborated on the money purchase plan, and we leave it for them to determine under Rule 155 the extent, if any, to which it affects the deficiencies in these cases. 6
Sharing Plan, which merged with the Pension Plan on January 31,
1980, and (3) the Defined Benefit Plan (EWB P.C. Defined Benefit
Plan). None of these plans is at issue in this case. In
September 1978, after completing 1 year of service with EWB P.C.,
Brody became a participant in the Pension Plan. Brody was a
participant in the EWB P.C. Defined Benefit Plan until its
termination in 1984. The record does not reveal when Brody
became a participant in the EWB P.C. Defined Benefit Plan. Brody
has no other records or information concerning the EWB P.C.
Defined Benefit Plan.
On January 31, 1983, Brody terminated his employment with
EWB P.C., and EWB P.C. redeemed his stock therein.
On February 1, 1983, Brody incorporated Brody Enterprises,
Inc.,5 with Brody as its sole shareholder and employee. On June
13, 1983, Brody Enterprises adopted the Brody Enterprises Defined
Benefit Pension Plan (the Brody Enterprises plan), effective
February 1, 1983. The Brody Enterprises plan is at issue in
docket No. 177-91. The terms of the Brody Enterprises plan limit
the benefits payable under the plan to those allowable under
section 415.
On Form 5302, Brody Enterprises declared that Brody had 2
years of service with the employer as of May 31, 1985.
5 Brody incorporated Marvin D. Brody, P.C., and later changed the name to Brody Enterprises, Inc. For convenience, we refer to Brody Enterprises throughout this opinion. 7
On November 1, 1986, Ehmann, Waldman & Brody, P.A. (EWB
P.A.) was formed. Brody was not a shareholder or an officer of
EWB P.A. The record does not reveal who formed EWB P.A.
Sometime around November 1, 1986, Brody ceased employment with
Brody Enterprises and entered into an employment contract with
EWB P.A. On November 1, 1987, Brody terminated his employment
with EWB P.A.
OPINION
Each of petitioners' plans was a small defined benefit
pension plan. A defined benefit pension plan provides a
participant at retirement with the benefit stated in the plan.
The costs of benefits payable from such plans are funded
incrementally on an annual basis over the preretirement period.
Secs. 404, 412. Contributions made to the plans, within certain
limits, are deductible. Sec. 404(a)(1). Earnings on the
contributions are not taxed as they accumulate. Sec. 501(a).
Plan assets are taxed to participants only as they are paid out
as benefits. Sec. 402(a)(1). The payment of benefits under a
qualified plan is limited. Sec. 415. These cases focus on the
limitations in section 415.
Section 415 was added to the Internal Revenue Code by
section 2004(a)(2) of the Employee Retirement Income Security Act
of 1974 (ERISA), Pub. L. 93-406, 88 Stat. 829, 979. The
enactment of ERISA was a legislative attempt to assure equitable
and fair administration of pension plans and to remedy problems 8
that had arisen, which prevented many of those plans from
achieving their full potential as a source for retirement income.
Citrus Valley Estates, Inc. v. Commissioner, 99 T.C. at 399.
In conjunction with its effort to expand the number of
employees participating in employer-financed plans, Congress also
placed limits on the amounts of pension contributions and
benefits available under those plans.
[I]t is not in the public interest to make the substantial favored tax treatment associated with qualified retirement plans available without any specific limitation as to the size of the contributions or the amount of benefits that can be provided under such plans. The fact that present law does not provide such specific limitations has made it possible for extremely large contributions and benefits to be made under qualified plans for some highly paid individuals. While there is, of course, no objection to large retirement benefits in themselves, your committee believes it is not appropriate to finance extremely large benefits in part at public expense through the use of the special tax treatment. * * *
* * * * * * *
Moreover, to prevent abuse, the full [section 415(b)(1)] maximum benefit may be paid only to individuals who have 10 years or more service. Where an individual has served for less than 10 years, the maximum permissible benefit is reduced proportionately. [H. Rept. 93-807, at 35-36 (1974), 1974-3 C.B. (Supp.) 236, 270-271.]
Section 415(a) precludes qualified plans from providing for
payment of annual benefits in excess of an amount determined
under subsection (b). Section 415(b)(1) establishes an annual
benefit limitation as the lesser of a dollar amount ($75,000, as
adjusted under section 415(b)(2), for the years at issue) or 100 9
percent of the participant's average compensation for his 3
highest paid years with the plan sponsor. For the years at
issue, section 415(b)(5) reduced the subsection (b)(1) dollar
limitation as follows:
(5) Reduction for service less than 10 years.-- In the case of an employee who has less than 10 years of service with the employer, the limitation referred to in paragraph (1) * * * shall be the limitation determined under such paragraph * * * multiplied by a fraction, the numerator of which is the number of years (or part thereof) of service with the employer and the denominator of which is 10.
Thus, a qualified defined benefit pension plan may not provide
for payment of benefits in excess of the dollar limitation of
section 415(b)(1) as further limited by section 415(b)(5).6
In Citrus Valley, we held that section 404(j)(1) limits
deductible contributions to the amount necessary to fund the
benefits payable under section 415 determined at the time of the
contribution in question. Citrus Valley Estates, Inc. v.
Commissioner, 99 T.C. at 447. The dispute in these cases focuses
on the amounts of benefits payable under section 415 determined
at the time of the contributions in question. Specifically, at
issue is whether Pallin's and Brody's prior employment with
entities other than the plans' sponsors constitutes "service with
the employer" as that term is used in section 415(b)(5).
6 For plan years beginning after Dec. 31, 1986, sec. 415(b)(5) was amended to restrict the sec. 415(b)(1) dollar limitation for participants with less than 10 years of participation in the plan. See Tax Reform Act of 1986, Pub. L. 99-514, sec. 1106, 100 Stat. 2085, 2424. 10
We begin with the presumption that respondent's
determination is correct, and petitioners have the burden of
proving otherwise. Rule 142(a); Welch v. Helvering, 290 U.S.
111, 115 (1933); Dellacroce v. Commissioner, 83 T.C. 269, 279-280
(1984). Deductions and credits are a matter of legislative
grace, and petitioners bear the burden of proving entitlement to
any deduction or credit claimed on their returns. INDOPCO, Inc.
v. Commissioner, 503 U.S. 79 (1992); New Colonial Ice Co. v.
Helvering, 292 U.S. 435, 440 (1934).
In construing a statute, courts generally seek the plain and
literal meaning of its language. United States v. Locke, 471
U.S. 84, 93, 95-96 (1985); United States v. American Trucking
Associations, Inc., 310 U.S. 534, 543 (1940). For that purpose,
courts generally assume that Congress uses common words in their
popular meaning. Commissioner v. Groetzinger, 480 U.S. 23, 28
(1987); see also Addison v. Holly Hill Fruit Prods., Inc., 322
U.S. 607, 618 (1944). Moreover, words in a revenue act
generally are interpreted in their "'ordinary, everyday senses'".
Commissioner v. Soliman, 506 U.S. 168, 174 (1993) (quoting Malat
v. Riddell, 383 U.S. 569, 571 (1966) (quoting Crane v.
Commissioner, 331 U.S. 1, 6 (1947))).
Words with a fixed legal or judicially settled meaning, on
the other hand, generally must be presumed to have been used in
that sense, unless such an interpretation will lead to absurd
results. See United States v. Merriam, 263 U.S. 179, 187 (1923); 11
Lenz v. Commissioner, 101 T.C. 260, 265 (1993). We must rely on
the words of the statute as generally understood, for to do
otherwise would be to redraft the statute. United States v.
Locke, supra at 93, 95-96; Lenz v. Commissioner, supra at 265
(citing United States v. American Trucking Associations, Inc.,
supra at 542-543).
In interpreting any statue, we attempt to determine
Congress' intent in using the statutory language being construed.
United States v. American Trucking Associations, Inc., supra at
542; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 93-94
(1934); General Signal Corp. & Subs. v. Commissioner, 103 T.C.
216, 240 (1994). Moreover, where the statute is ambiguous, we
may look to its legislative history and to the reason for its
enactment. United States v. American Trucking Associations,
Inc., supra at 543-544; U.S. Padding Corp. v. Commissioner, 88
T.C. 177, 184 (1987), affd. 865 F.2d 750 (6th Cir. 1989). In
addition, we may seek out any reliable evidence as to the
legislative purpose even where the statute is clear. United
States v. American Trucking Associations, Inc., supra; Centel
Communications Co. v. Commissioner, 92 T.C. 612, 628 (1989),
affd. 920 F.2d 1335 (7th Cir. 1990).
The relevant language in section 415(b)(5) includes "In the
case of an employee who has less than 10 years of service with
the employer". There is no dispute that the years of service
with the business organization that established and maintained 12
the plan, that is, Lear or Brody Enterprises, constitute "years
of service with the employer" for purposes of section 415(b)(5).
The issue we must decide is whether the term "service with the
employer" includes service with businesses that antedate Lear and
Brody Enterprises. While we have never been faced with this
exact issue in the context of section 415(b)(5), we find guidance
from the analysis in cases dealing with the meaning of separation
from the service as used in section 402(e). See Burton v.
Commissioner, 99 T.C. 622 (1992); Reinhardt v. Commissioner, 85
T.C. 511 (1985); Ridenour v. United States, 3 Cl. Ct. 128 (1983).
We conclude that, for purposes of section 415(b)(5), "service
with the employer" includes service with businesses that antedate
the corporation, where formation of the corporation results in a
mere formal or technical change in the employment relationship
and continuity otherwise exists in the substance and
administration of the business operations of the previous
business and the corporation. We turn to the parties' respective
arguments.
Lear argues that Pallin's years as a sole proprietor and his
years with Lear constitute "years of service with the employer"
for purposes of section 415(b)(5). Respondent concedes, and it
is clear, that Pallin's years with Lear constitute "years of
service with the employer" for purposes of section 415(b)(5).
Thus, we need only address Pallin's years as a sole proprietor. 13
On the surface, Pallin's service as a sole proprietor
followed by the formation of Lear and the continuation of the
medical practice as a corporation technically involved a change
in the employer. Lear was the employer after the incorporation,
and Lear did not exist prior to that time. This analysis,
however, ignores that Pallin continued performing the same
services in the corporate form that he had performed as a sole
proprietor. There was no lapse in time between the medical
practice's transition from a sole proprietorship to a
corporation. Pallin continued to own a majority interest in the
practice, and the practice remained in Phoenix. Pallin's
professional duties and responsibilities did not change under the
corporate form, nor did the administration of the medical
practice under the corporate form. The composition of the
medical practice's staff, physicians, or patients did not change
as a result of the transition to corporate form. These factors
lead to the conclusion that the administration of the medical
practice and the substance of Pallin's business operations
remained the same despite the technical change in Pallin's
employment relationship after the formation of Lear.
Accordingly, we conclude that Pallin's years as a sole proprietor
constitute "years of service with the employer" for purpose of
section 415(b)(5). To conclude otherwise would elevate form over
the obvious continuity in Pallin's service before and after the
formation of Lear. 14
Our conclusion is buttressed by case law addressing
separation from the service in which we have looked to the
substance of the employment relationship rather than the formal
or technical change in that relationship. In Burton v.
Commissioner, supra, Burton was a practicing physician. Burton
incorporated his medical practice and was the sole shareholder of
the professional association. The professional association
maintained a qualified pension plan, and Burton was a participant
in that plan.
Burton eventually liquidated the professional association.
Immediately after the liquidation, Burton resumed his medical
practice in the form of a sole proprietorship. The pension plan
was terminated, and its assets were distributed to the
participants. Burton reported the distribution using the 10-year
forward averaging method which had the effect of reducing the tax
impact in the year of the distribution. The Commissioner argued
that Burton's change in status from a sole shareholder-employee
to sole proprietor was merely a change in form and that there had
been no separation from the service within the meaning of section
402(e). The Commissioner reasoned that since there was no
separation from the service, the 10-year forward averaging method
was not available to Burton.
We held that Burton's change of status from that of an
employee of a professional association to that of a sole
proprietor was not a "separation from the service" within the 15
meaning of section 402(e)(4)(A)(iii). We first noted that "On
its face", the liquidation of Burton's professional association
and the continuation of his medical practice in the sole
proprietorship form satisfied the formality of separation from
the service. Burton v. Commissioner, supra at 626. After
reviewing the continuity between Burton's practice as a
professional association and the subsequent practice as a sole
proprietorship, we concluded that there was only a technical
change in the employment relationship that did not result in
separation from the service. Id. at 629. We stated: "Our
conclusion that there was only a technical change in the
employment relationship is supported by the fact that Dr. Burton
continued performing the same services as a sole proprietor as he
had performed in the corporate form." Id. at 629-630; see also
Reinhardt v. Commissioner, supra (change from shareholder-
employee to independent contractor does not constitute separation
from the service); Ridenour v. United States, supra (change from
employee to partner does not constitute separation from the
service); cf. Devinaspre v. Commissioner, T.C. Memo. 1985-435
(employee transfer between unrelated entities constituted
separation from the service). The analysis and reasoning in
Burton apply with equal strength to the cases before us.
Similar reasoning has been applied where a partnership
converted to a corporation. See United States v. Kintner, 216
F.2d 418 (9th Cir. 1954) (former partners given credit for past 16
service with the partnership for purposes of the 3-year
eligibility requirement for participation in the association's
plan); Farley Funeral Home, Inc. v. Commissioner, 62 T.C. 150
(1974) (former partners permitted to use a year of service as
partners to meet the eligibility requirements of the corporate
plan). The situations in Kintner and Farley dealt with years of
service for participation and vesting. Nonetheless, the
rationale of those cases regarding continuity of service supports
the conclusion we reach today.
Moreover, the approach we adopt fulfills the congressional
objective to prevent abuse, while at the same time giving proper
weight to the years that an individual has served. The House
report states: "Where an individual has served for less than 10
years, the maximum benefit is reduced proportionately." H. Rept.
93-807 at 36 (1974), 1974-3 C.B. (Supp.) 236, 271. The
continuity in Pallin's practice is clear. Pallin continued
performing the same services in the corporate form as he had
performed as a sole proprietor. We see no abuse in his counting
those years as service with the employer for purposes of section
415(b). Precluding Pallin from counting those years as service
with the employer would deny him the benefit envisioned by
Congress. We now turn to Brody Enterprises.
Brody Enterprises originally argued that the following years
constitute "years of service with the employer" for purposes of
section 415(b)(5): Brody's years with Brody Enterprises, 1 year 17
with Ehmann & Waldman when he did not participate in that firm's
pension plan, 5 years with Altheimer & Gray, and 4 years in which
he allegedly conducted, as a sole proprietor, a private law
practice while employed full time with the IRS. After remand of
these cases, Brody Enterprises has abandoned the argument that
Brody's 1 year with Ehmann & Waldman constitutes "service with
the employer." Respondent concedes that Brody's years with Brody
Enterprises constitute "years of service with the employer" for
purposes of section 415(b)(5). Thus, Brody's 5 years with
Altheimer & Gray and 4 years in which he allegedly conducted a
private law practice remain at issue. We address first the 4
years in which Brody allegedly conducted a private law practice
while employed with the IRS.
Brody Enterprises argues that under section 414(c), Brody's
4 years as a sole proprietor, allegedly conducted while employed
by the IRS, must be combined with his years with Brody
Enterprises as "years of service with the employer" for purposes
of section 415(b)(5). Brody Enterprises has failed to show that
Brody conducted a private law practice during the 4 years that
Brody was employed by the IRS. Brody testified that in 1970 or
1971 he began a part-time law practice during the time he worked
for the IRS. He kept no records of the hours spent on his part-
time law practice. He worked for the IRS full time, and there is
no evidence of the extent of the alleged part-time practice. We 18
conclude that these 4 years do not constitute "years of service
with the employer" for purposes of section 415(b)(5).
The remaining years in dispute include Brody's 5 years with
Altheimer & Gray. We apply criteria analogous to those applied
to Lear. We assume that Brody provided legal services for Brody
Enterprises and for Altheimer & Gray. Brody owned Brody
Enterprises, but there is no indication that Brody had an
ownership interest in Altheimer & Gray. Brody Enterprises has
shown no relationship between its business operations and those
of Altheimer & Gray. We think it unlikely that the clients of
Brody Enterprises in Phoenix corresponded with the clients of
Altheimer & Gray in Chicago. We have no indication that the
personnel at Brody Enterprises related in any way with those at
Altheimer & Gray other than, of course, Brody himself. Indeed,
Brody Enterprises seems to contend that service with any employer
constitutes service with the employer for purposes of section
415(b)(5), but the language of the statute refutes this
contention. The only shred of continuity between Brody
Enterprises and Altheimer & Gray was the fact that Brody worked
for both. Accordingly, we conclude that Brody's 5 years with
Altheimer & Gray do not constitute "years of service with the
employer" for purposes of section 415(b)(5).
Petitioners contend that section 414(a)(2) anticipates
circumstances in which service with a predecessor employer must 19
be credited as years of service for the employer. Section 414(a)
provides:
SEC. 414. DEFINITIONS AND SPECIAL RULES.
(a) Service for Predecessor Employer.--For purposes of this part--
(1) in any case in which the employer maintains a plan of a predecessor employer, service for such predecessor shall be treated as service for the employer, and
(2) in any case in which the employer maintains a plan which is not the plan maintained by a predecessor employer, service for such predecessor shall, to the extent provided in regulations prescribed by the Secretary, be treated as service for the employer.
No regulations have been issued pursuant to section 414(a)(2).
The cases before us do not involve the situation in section
414(a)(1), in which the employer maintains a plan of a
predecessor employer. Petitioners apparently do not ask us to
interpret section 414(a)(2) in their favor, and we doubt such a
request would prove beneficial. See Carver v. Westinghouse
Hanford Co., 951 F.2d 1083, 1088 (9th Cir. 1991); Phillips v.
Amoco Oil Co., 799 F.2d 1464, 1470-1471 (11th Cir. 1986)
(interpreting the ERISA counterpart to section 414(a)(2) and
concluding that Congress intended to leave to the Secretary of
the Treasury the question of whether to require such service with
a predecessor employer be taken into account). Petitioners
instead argue that, in the absence of regulations under section
414(a)(2), the plan sponsor or the plan administrator had the 20
discretion to include the disputed years as "years of service
with the employer" under their respective plans, subject only to
the limitation that the determination not be arbitrary or
capricious. Petitioners cite Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101 (1989), United States v. Kintner, 216 F.2d
418 (9th Cir. 1954), and Farley Funeral Home, Inc. v.
Commissioner, 62 T.C. 150 (1974), in support of their argument.
In Firestone Tire, the Supreme Court established the standard of
review by which a plan administrator's decision to deny benefits
is to be reviewed in a challenge under ERISA. That issue is not
raised in these cases. We find Kintner and Farley relevant only
to the extent that the courts examined the substance of the
employment relationship as discussed above. The issue before us
is the interpretation of section 415(b)(5). Congress did not
leave that issue to the discretion of plan administrators.
To reflect the foregoing and the concessions by the parties,
Decisions will be entered
under Rule 155.