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Rule 201(f) of the Federal Rules of Evidence provides that
judicial notice may be taken at any stage of the proceeding.
Petitioner's Judicial Notice Motions will be denied in this case,
however, because their many paragraphs constitute nothing more
than a hodgepodge of argument and statements with respect to the
alleged action or inaction of respondent's counsel, of other
taxpayers, and of Congress, and with respect to collectively
bargained multiemployer pension plans.
Unfortunately for petitioner's position is the overlooked
central fact that section 404(a)(6), from which the disputed
administrative pronouncements have flowed, is a timing provision,
not a free-standing substantive provision intended to override
other deduction provisions of section 404(a). Section 404 is
entitled "DEDUCTION FOR CONTRIBUTIONS OF AN EMPLOYER TO AN
EMPLOYEES' TRUST". Section 404(a)(6) is entitled "Time when
contributions deemed made" (emphasis added).
The private rulings attached to petitioner's various filings
all uniformly hold that post-yearend contributions (grace period
contributions) to a qualified employees' benefit plan (including
in some cases multiemployer plans), if made within the parameters
spelled out in section 404(a)(6), may be deducted in the prior
year, but only if they fall within the deduction limitations of
section 404(a) and related subsections. Since petitioner's
Motion and the Judicial Notice Motions never address this all-
important proviso, petitioner's claim, even if correct, that
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Last modified: May 25, 2011