- 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.)Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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