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contributions, a taxpayer (petitioner included) may not
arbitrarily expand its own deduction limitation for any taxable
year by the simple expedient of deducting actual contributions
that are inconsistent with its anticipated contributions. Lucky
Stores, Inc., & Subs. v. Commissioner, 107 T.C. at 14. If any
one employer-contributor to a multiemployer plan could expand its
deduction limitation by this method, all could do so, a result
not intended by section 413(b)(7). Nowhere in any of its moving
papers does petitioner attempt to address this point.
Petitioner cites Airborne Freight Corp. v. United States, 76
AFTR 2d 95-7497, 96-1 USTC par. 50,004 (W.D. Wash. 1995), as
being the only other decision to consider the issue herein.
Airborne Freight Corp., however, is factually distinguishable
from the instant case. Our Opinion took into account testimony
by the plan administrator that she customarily determined the
minimum funding standards on an annual basis with reference to
hours worked by covered employees before the year closed. This
testimony was probative that the payments in question, insofar as
they were based on wages earned after the year's end, were not
treated in the same manner that the CBA plans would treat a
payment actually received on the last day of the taxable year.
See Lucky Stores, Inc., & Subs. v. Commissioner, 107 T.C. at 13-
15; cf. Rev. Rul. 76-28, 1976-1 C.B. 106. The order granting
plaintiff's motion for summary judgment in Airborne Freight
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