American Stores Company and Subsidiaries - Page 31

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               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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