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respondent”, F.W. Woolworth Co. v. Commissioner, 54 T.C. 1233,
1265-1266 (1970); see also Houston Oil & Minerals Corp. v.
Commissioner, 92 T.C. 1331, 1338 (1989), affd. 922 F.2d 283 (5th
Cir. 1991); Driggs v. Commissioner, 87 T.C. 759, 771 n.10 (1986);
Miller v. Commissioner, 70 T.C. 448, 460 (1978), respondent has
conceded that petitioner may rely on these proposed regulations
with respect to a change in ownership or control that occurs
prior to January 1, 2004, see Preamble to sec. 1.280G-1, 68 Fed.
Reg. 45745 (Aug. 4, 2003); see also Preamble to sec. 1.280G-1,
Proposed Income Tax Regs., 67 Fed. Reg. 7630 (Feb. 20, 2002).
Even though petitioner is entitled to rely on the version of Q&A-
23 contained in the 1989 proposed regulations, that version does
not support petitioner’s position.
In an effort to bring the payments at issue within the
exception in Q&A-23 to treatment as contingent on a change in
control, petitioner offers considerable argument in support of
the claim that the Retention Payments and disputed 1991 SRP
Benefits were made “pursuant to” the 1991 Employment Agreements
(as amended in 1992) rather than the 1990 Employment Agreements.
This is not the issue, however. No one seriously disputes that
the payments in question where made “pursuant to” the 1991
Employment Agreements, as amended in 1992; the dispute concerns
whether the 1991 Employment Agreements were executed “pursuant
to” the 1990 Employment Agreements. To the extent we can
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