- 36 -
Memo. 1997-70. Rather, the court summarily opined that, because
the taxpayer was late in filing its 1989 tax return, it could not
have interfered with the ability of other employers to calculate
and claim their deductions. Airborne Freight Corp. v. United
States, 76 AFTR 2d 95-7497, at 95-7499, 96-1 USTC par. 50,004, at
83,015 (W.D. Wash. 1995). The District Court held that, since
the "plan-wide deductible limit" had not been exceeded, the
disputed deductions were permissible. Id. Such a conclusion can
only be reached retrospectively, which is precisely what
petitioner (correctly) opposes as contrary to Congress' intent.
In addition, this holding does not recognize an employer
contributor's individual deduction limit. We respectfully
disagree with the District Court's analysis.
In our view, limiting each employer's deductions to
contributions based on services performed in its 12-month tax
year leads to the following salubrious results: (1) Deductions
are predictable since they do not hinge on section 404(a)(6); and
(2) no employer can usurp a greater share of a plan year's
overall deduction limit at another's expense based on the
vagaries of when its tax year ends in relation to that of other
employers or when it files its return. Cf. Airborne Freight
Corp. v. United States, 76 AFTR 2d 95-7497, at 95-7499, 96-1 USTC
par. 50,004, at 83,015 (W.D. Wash. 1995) ("It seems only fair to
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