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characterization of master-servant type relationships, we
concluded that for purposes of section 219(g), Federal judges
were not employees of the United States. Therefore, we held
that the limitations imposed by that section were not applicable
to Federal judges.
Congressional reaction to our opinion in Porter was
relatively swift. In the Omnibus Budget Reconciliation Act of
1987 (OBRA), Pub. L. 100-203, sec. 10103, 101 Stat. 1330-386,
which was not codified, Congress specifically provided that
Federal judges should be treated as employees for purposes of
section 219(g).
Following the enactment of section 10103 of OBRA, in Porter
v. Commissioner, 856 F.2d 1205 (8th Cir. 1988), revg. 88 T.C. 548
(1987), the Court of Appeals for the Eighth Circuit reversed our
decision. The Court of Appeals for the Eighth Circuit rejected
our method of construing the statutory language, and directed
that the term "employee" be defined by giving it a meaning
consistent with the general purposes of the statute in which it
is found. Id. at 1208. In this regard, the Court of Appeals for
the Eighth Circuit concluded that Congress enacted section 219 in
an attempt to achieve, with respect to tax advantaged retirement
plans, some degree of parity between those individuals who had
access to such plans through employment and those individuals who
did not. Treating both categories of individuals equally for
purposes of section 219 would not be consistent with the overall
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