- 59 -
the deferred compensation features incidental and meaningless for
purposes of our analysis.
Respondent argues that this Court's jurisprudence provides
that the DWB's were deferred compensation, citing mainly
Grant-Jacoby, Inc. v. Commissioner, 73 T.C. 700 (1980); New York
Seven-Up Bottling Co. v. Commissioner, 50 T.C. 391, 398 (1968);
New York Post Corp. v. Commissioner, 40 T.C. 882, 888 (1963); and
Harry A. Wellons, Jr., M.D., S.C. v. Commissioner, T.C. Memo.
1992-704. We disagree. The plan at issue in each of the cases
cited by respondent is distinguishable from the Prime Plan. Such
is also true with respect to the benefits provided under each
plan.
Nor do we agree with respondent's reading of the Seventh
Circuit's opinion in Harry A. Wellons, Jr., M.D., S.C. v.
Commissioner, 31 F.3d 569 (7th Cir. 1994), to provide that the
DWB's were deferred compensation because the Prime Plan had some
indicia of a deferred compensation plan. All welfare benefit
plans bear some element of deferred compensation, see Wheeler v.
United States, 768 F.2d 1333, 1336 (Fed. Cir. 1985); Greensboro
Pathology Associates, P.A. v. United States, 698 F.2d 1196, 1200
(Fed. Cir. 1982), and respondent's reading of the Seventh
Circuit's opinion emasculates the right of a taxpayer to avail
itself of the tax attributes of a welfare benefit plan. Unlike
the Prime Plan, the plan at issue in Wellons was "more akin to a
deferred compensation plan than the sort of 'welfare benefits'
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