Sklar, Greenstein & Scheer, P.C. - Page 13




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               Respondent misconstrues the regulation.  To restate, section           
          1.404(a)-3(d), Income Tax Regs., is a clarification of whether              
          and in what circumstances payment by an employer of plan expenses           
          is a "contribution", the deduction of which is limited by section           
          404.  It further clarifies that section 162 governs the deduction           
          of any payments falling outside the reach of section 404.  In the           
          circumstances described in section 1.404(a)-3(d), Income Tax                
          Regs., section 404 does not limit or restrict expenses that are             
          otherwise deductible under section 162.  There is no requirement            
          under section 162 that the expense be "recurring in nature" or              
          related solely to administration, and, in fact, a payment may be            
          a one-time occurrence and still be ordinary and necessary.  See             
          Commissioner v. Heininger, 320 U.S. 467 (1943); Welch v.                    
          Helvering, supra at 114.                                                    
               To the extent respondent relies on Rev. Rul. 86-142, 1986-2            
          C.B. 60, we disagree with the reasoning therein and decline to              
          adopt that reasoning.11  See Stark v. Commissioner, 86 T.C. 243             
          (1986) (revenue ruling is not binding on this Court).  Respondent           
          does not argue the regulation is ambiguous or that any particular           


               11Notwithstanding our holding herein, we do not believe the            
          result reached in Rev. Rul. 86-142, 1986-2 C.B. 60, would change            
          because broker's commissions incurred in connection with the                
          acquisition of securities must be capitalized.  See Helvering v.            
          Winmill, 305 U.S. 79 (1938); sec. 1.263(a)-2(e), Income Tax Regs.           
          Respondent has not raised the issue of whether the litigation               
          costs at issue here were capital expenses, and we express no                
          opinion in this regard.                                                     




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