Mark J. Fuhrman & Mary A. Fuhrman - Page 6

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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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