- 96 - While it is possible that some portion of the 1991 SRP Benefits is theoretically allocable to services provided in years other than 1992, petitioner has made no showing in this regard and instead has stipulated that the 1991 SRP Benefits were “earned” by the Retained Executives in 1992. In addition, the 1991 SRP Benefits were paid in 1992 and deducted in full by petitioner in that year. In these circumstances, giving due regard to the fact that petitioner bears a “clear and convincing” burden of proof, we find that the 1991 SRP Benefits are allocable in full to the Retained Executives’ 1992 compensation.57 As earlier noted, supra note 28, respondent has conceded that a portion of the 1991 SRP Benefit paid to each Retained Executive should not be treated as contingent on a change of control under Q&A-24(c) of the proposed regulations. See sec. 1.280G-1, Q&A-24(c), Proposed Income Tax Regs., 54 Fed. Reg. 19399 (May 5, 1989). Respondent maintains his position that the remainder of the 1991 SRP Benefits not excluded from parachute 57 As noted, we are also unpersuaded by Mr. Rosenbloom’s position that the 1991 SRP Benefits should be allocated ratably over the years in the period 1992-95 in which a Retained Executive remained employed by petitioner, the same treatment he applied to the Retention Payments. Since the Retention Payments were subject to clawback while the 1991 SRP Benefits were not, we do not believe that the same treatment is appropriate for both types of payments. Moreover, the ratable allocation advocated by Mr. Rosenbloom conflicts with the parties’ stipulation that the 1991 SRP Benefits were “earned” in 1992.Page: Previous 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 Next
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