Lawrence L. and Kathleen J. Kelter - Page 14

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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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