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basis to impose any requirement that a plan must vary payments in
accordance with the type of injury.” That is the same argument
that was made to the Court of Appeals for the Ninth Circuit in
the Beisler case. It was rejected by the Court of Appeals there,
814 F.2d. at 1308, and we reject it here. Like the Court of
Appeals, we have examined the legislative history of section
105(c). We believe that it is insufficient to satisfy the
section 105(c) requirements for exclusion that payments are made
without regard to absence from work and on account of injury or
sickness. We agree with the Court of Appeals, 814 F.2d at 1308,
that petitioners’ interpretation would make the nature-of-the-
injury language superfluous. Under petitioners’ interpretation,
section 105(c) would be satisfied if the Plan had been designed
to pay petitioner 100 percent of his Accrued Benefit (his
retirement benefit) if he had gone deaf in one ear. See section
1.105-3, Income Tax Regs. (loss of substantially all of the
hearing in one ear is considered loss of use of a function of the
body). We do not believe that result comports with Congress’
purpose in enacting the section 105(c) exclusion rule.
Finally, petitioners claim that, because of the
determination letter, respondent is precluded from challenging
the qualification of the plan under section 105. We disagree.
First, we are unconvinced that the corporation asked for a
determination with respect to section 105 or pointed out to the
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