- 42 -
v. Commissioner, 110 T.C. ___, ___ (1998) (slip op. at
4).]
The majority, relying on the report of the Senate Finance
Committee, opines that "included" means "taken into account in
determining the tax liability" and is synonymous with the term
"recognize". Majority op. pp. 8-9. In footnote 3 on page 9 of
the Majority opinion, the majority argues that because section
83(h) uses the term "included" and section 404(a)(5), which was
also added by section 321 of the Tax Reform Act of 1969, Pub. L.
91-172, 83 Stat. 487, 588, uses the term "includible", Congress
intended different meanings.6 However, a close analysis of the
Senate Finance Committee report indicates that Congress used the
two terms interchangeably. The Senate Finance Committee report
refers to the deduction under section 83(h) and states:
The allowable deduction is the amount which the
employee is required to recognize as income. The
deduction is to be allowed in the employer's accounting
period which includes the close of the taxable year in
which the employee recognizes the income. * * * [S.
Rept. 91-552, supra at 123, 1969-3 C.B. at 502;
emphasis added.]
6Sec. 404(a)(5) provides that contributions to nonexempt
plans are deductible in the taxable year in which an amount
attributable to the contribution is "includible in the gross
income of employees". Sec. 402(b)(1) provides that employer
contributions to a nonexempt trust "shall be included in the
gross income of the employee in accordance with section 83".
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