Stephen P. and Jutta A. Maranto - Page 12

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          an employer for the exclusive benefit of his employees to provide           
          such employees with educational assistance."  Both Mr. Maranto              
          and Mr. Evans testified that Mr. Maranto was not an "employee" of           
          the Herkeios Group.  Mr. Evans testified that Mr. Maranto had a             
          contractual relationship with the trust to provide certain                  
          services.  In addition, petitioners presented no evidence of any            
          written plan setting forth the Herkeios Group's educational                 
          assistance program as required in section 127(b)(1).  We,                   
          therefore, sustain respondent's determination.                              
               The next issue for decision is whether petitioners are                 
          entitled to exclude from income $1,688.92 that they received from           
          the Herkeios Group in 1991 as reimbursement for health care                 
          expenses. Petitioners contend that this amount is excludable from           
          income.  We disagree.                                                       
               Section 105(b) provides in certain cases for the exclusion             
          from gross income of amounts paid by an employer to an employee             
          as reimbursement for medical expenses incurred by the employee,             
          his spouse, or dependents.  However, we have already found that             
          Mr. Maranto was not an employee of the Herkeios Group.  Moreover,           
          section 6039D(a) requires employers who maintain a "specified               
          fringe benefit plan", to file a return each year listing certain            
          relevant information.  A plan maintained pursuant to section 105            
          is a "specified fringe benefit plan".  Sec. 6039D(d)(1).                    
          Petitioners produced no evidence that the Herkeios Group filed              





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