Lear Eye Clinic, Ltd., et al. - Page 12

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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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