Neonatology Associates, P.A., et al - Page 31




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            provide current-year life insurance protection.18  Respondent                              
            determined alternatively that the excess contributions were not                            
            deductible under section 404(a)(5); respondent determined that                             
            the Neonatology Plan was not a “welfare benefit fund” under                                
            section 419(e) but a nonqualified plan of deferred compensation                            
            subject to the rules of section 404.  Respondent determined as a                           
            second alternative that, assuming the Neonatology Plan is a                                
            “welfare benefit fund”, any deduction of the excess contributions                          
            was precluded by section 419; for this alternative, respondent                             
            determined that the SC VEBA was not a “10-or-more employer plan”                           
            under section 419A(f)(6) as asserted by petitioners.                                       
                  As to the Malls, respondent determined they had “other                               
            income” of $19,374 in 1992 (Neonatology’s adjustment of $23,646                            
            less the 1991 NOL of $4,272) and $19,969 in 1993.  Respondent                              
            determined that the other income was either constructive dividend                          
            income under section 301 or nonqualified deferred compensation                             
            under section 402(b).  As to the latter position, respondent                               
            determined that Dr. Mall was taxable on the disallowed                                     


                  18 Although respondent’s determination acknowledges that                             
            Neonatology may deduct any contribution that is attributable to                            
            current-year life insurance protection, respondent has not                                 
            determined as to the Neonatology group (or the Lakewood group as                           
            discussed infra) the cost of that current-year protection.  As to                          
            the Neonatology group, respondent’s determination merely takes                             
            into account the fact that the Malls recognized P.S. 58 income                             
            for the subject years.  As mentioned supra note 17, P.S. 58                                
            income relates to life insurance contracts held in a qualified                             
            pension plan.                                                                              





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