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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.
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