- 31 -
actually received on the last day of such preceding
taxable year of the employer, and (b) either of the
following conditions is satisfied.
(1) The employer designates the payment in
writing to the plan administrator or trustee as a
payment on account of the employer's preceding taxable
year, or
(2) The employer claims such payment as a
deduction on his tax return for such preceding taxable
year * * *. [Rev. Rul. 76-28, 1976-1 C.B. at 107;
emphasis added.]
The underscored language above illustrates that Rev. Rul. 76-28
offers those employers to which it applies the opportunity for
what is in effect an election under section 404(a)(6). In Lucky
Stores I, we did not need to address the weight to be afforded
Rev. Rul. 76-28 in the context of CBA Plans. Lucky Stores, Inc.,
& Subs. v. Commissioner, 107 T.C. at 13-14. We held that, in any
event, grace period contributions based on services performed
after the close of the taxable year were not "on account of" the
earlier tax year in that the taxpayer had not proven that the
"same treatment requirement" of Rev. Rul. 76-28 was satisfied.
Id. (The only grace period contributions that we find to be "on
account of" TYE 8801 and which, consequently, must be deducted in
that year, are any delinquent payments and the payments for
services performed in the last month of TYE 8801 but not paid
until the first month of TYE 8901.)
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