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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.
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