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Mr. Weiss, Streich Lang engaged Dr. Raby from February 1988 to
the beginning of 1990, to assist Mr. Weiss in forming the desired
plan and to express a concurring opinion on Mr. Weiss' tax
opinions related thereto. Prime informed Dr. Raby that it wanted
to develop a plan that offered a front-end reduction of taxes for
small employers and a deferral of income for their employees.
Dr. Raby and Mr. Weiss advised Prime that the plan needed an
element of risk-shifting to qualify for the desired benefits, and
that a "suspense account" could be used to accomplish the
required shifting of risk. Dr. Raby and Mr. Weiss later
presented Prime with different provisions for the Prime Plan,
some of which Prime found unacceptable for marketability
purposes. Dr. Raby and Mr. Weiss redrafted the unacceptable
provisions, and Prime found the redrafted provisions more to
their liking.
Dr. Raby wrote an opinion concurring with Mr. Weiss' tax
opinion dated June 2, 1988, and Dr. Raby concurred with
Mr. Weiss' opinion dated April 12, 1989. Dr. Raby's concurrences
were based on his understanding of the tax law including the
"possible purposes" of section 419A(f)(6). Dr. Raby's
concurrences, as well as Mr. Weiss' opinions that related
thereto, did not address any version of the Prime Plan that is at
issue herein; they discussed a hypothetical plan that evolved
into the instant versions. Dr. Raby's name was used to promote
versions of the Prime Plan that were marketed to the public.
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