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fide employee. See secs. 105(b),(e), and 106(a); Larkin v.
Commissioner, 48 T.C. 629, 635 (1967), affd. 394 F.2d 494 (1st
Cir. 1968); Tschetter v. Commissioner, T.C. Memo. 2003-326 (there
need not be a written plan or enforceable employee rights under
the plan so long as the participant has notice or knowledge of
the plan); sec. 1.105-5(a), Income Tax Regs.
Respondent argues that Mr. Speltz’s medical premiums and
reimbursements should not be excluded from petitioners’ income
because there was no proper plan under section 105(b).
Alternatively, if there was a proper plan, respondent argues that
notice or knowledge of the plan was not reasonably available to
Mr. Speltz. Respondent also argues that Mr. Speltz did not meet
his contractual obligations under the “client data sheet” to work
12.5 hours each week. Finally, respondent argues that Mr. Speltz
was not an employee of the daycare. We address each argument in
turn.
Whether There Was a Proper Plan
Section 105(b) and the underlying regulations provide
guidelines as to what constitutes an accident and health plan.
See sec. 105(e); sec. 1.105-5(a), Income Tax Regs. A plan may be
nonfunded or funded, insured or uninsured, it may cover one or
more employees, and different plans may exist for different
classes of employees. See sec. 105(e); Wigutow v. Commissioner,
T.C. Memo. 1983-620 (the regulation contemplates a plan for the
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