The opinion
107 T.C. No. 16
UNITED STATES TAX COURT
SCHMIDT BAKING COMPANY, INC., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10458-95. Filed November 14, 1996.
P funded its vacation and severance pay
obligations to its employees for 1991 by purchasing an
irrevocable letter of credit on March 13, 1992. The
letter of credit constituted a transfer of an interest
in substantially vested property, includable in income
of the employees as of that date under sec. 83, I.R.C.
P, an accrual basis taxpayer, deducted the amount of
the letter of credit on its 1991 return on the basis
that it paid the vacation pay within 2-1/2 months of
the close of its 1991 taxable year and was therefore
entitled to the claimed deduction under sec. 83(h),
I.R.C., and sec. 1.83-6(a)(3), Income Tax Regs. R
disallowed the deduction on the ground that the letter
of credit did not constitute payment to the employees
within the 2-1/2 month period with the result that sec.
404(a)(5), I.R.C., and sec. 1.404(b)-1T, Temp. Income
Tax Regs., 51 Fed. Reg. 4321 (Feb. 4, 1986), applied
and the deduction was not allowable to P for its 1991
taxable year. Held, the letter of credit constituted
payment on March 13, 1992, so that sec. 404(a)(5),
- 2 -
I.R.C., does not apply, and the deduction for vacation
and severance pay is an allowable deduction for P's
1991 taxable year under sec. 83(h), I.R.C., and sec.
1.83-6(a)(3), Income Tax Regs.
Theodore W. Hirsh, Andrea R. Macintosh, and Frances M.
Angelos, for petitioners.
Clare J. Brooks, for respondent.
OPINION
TANNENWALD, Judge: Respondent determined the following
deficiencies in petitioner's Federal income taxes:
Taxable Year Ended Deficiency
Dec. 26, 1987 $ 6,982.00
Dec. 31, 1988 193,182.00
Dec. 28, 1991 2,873.00
After concessions, the sole issue for decision is whether
petitioner may deduct for its 1991 tax year amounts for vacation
and severance pay which accrued in that year, were funded within
2-1/2 months of the end of that year, i.e., March 13, 1992, by
means of an irrevocable letter of credit, and were includable in
the income of the employees as of that date.
- 3 -
Background
This case was submitted fully stipulated under Rule 122.1
The stipulation of facts and supplemental stipulation of facts
are incorporated herein by this reference and found accordingly.
Petitioner, an accrual basis taxpayer, is a corporation with
over 1,300 employees that, at the time of the filing of the
petition, had its principal place of business in Baltimore,
Maryland. It filed timely Federal income tax returns for the
years at issue with the Internal Revenue Service Center,
Philadelphia, Pennsylvania.
Petitioner had in place a vacation plan, whereby vacation
earned in the first year could only be taken between January 1st
and December 31st of the following year. Terminated employees
could get cash for their unused vacation pay with proper notice
to petitioner. Petitioner also had a plan of severance pay in
the event employees were laid off.
On March 13, 1992, petitioner purchased an irrevocable
standby letter of credit in the amount of $2,092,421 representing
accrued 1991 liabilities of $1,773,183 for vacation pay and
$319,238 for severance pay. Petitioner's employees were
designated as the beneficiaries with each employee and the amount
of the accrued benefit to which he or she was entitled separately
1
Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the taxable years in issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
- 4 -
listed.
The letter of credit was secured by petitioner's general
assets, and its employees were named as sole beneficiaries
thereunder. Under this arrangement, if petitioner failed to pay
secured vacation benefits, they would be paid by the issuer of
the letter of credit upon the request of the employees' agent,
petitioner's chief financial officer.
Under applicable bankruptcy law, petitioner's general
creditors had no right with respect to payments under the letter
of credit.
The parties have stipulated that the letter of credit
represented a transfer of substantially vested interests in
property to the employees for purposes of section 83, and that
the fair market value of the interests was includable in the
employees' gross incomes for 1992 as of the date the interests
were transferred.2
On its return, timely filed, for the taxable year ending
December 28, 1991, petitioner deducted all liabilities for
vacation and severance pay accrued during that year that were
listed in the letter of credit, in the amount of $2,092,421. By
way of a net operating loss carryback, petitioner also claimed a
2
Although we recognize that this stipulation represents a
conclusion of law that may not be binding upon us, we have found
no reason not to utilize it as an element of decision. See
Godlewski v. Commissioner, 90 T.C. 200, 203 n.5 (1988); Barnette
v. Commissioner, T.C. Memo. 1992-595, affd. without published
opinion 41 F.3d 667 (11th Cir. 1994).
- 5 -
deduction arising from this payment in the taxable year 1988.
Respondent determined that the 1991 deduction, and hence the
carryback to 1988, was not allowable.
Discussion
Resolution of the question before us involves an analysis of
several interrelated statutory and regulatory provisions which
can only be described as a semantical exercise worthy of Judge
Learned Hand's famous commentary on the complexity of the
Internal Revenue Code, a commentary which has acquired added
significance in the years since it was first articulated.3 As a
consequence, we set forth that analysis in order to bring into
focus the precise question that we must decide, namely, whether
the amounts of the accrued vacation and severance pay were "paid"
when the letter of credit was purchased on March 13, 1992.
Statutory Framework
The parties have stipulated that the purchase of the
irrevocable letter of credit was a transfer under section 83,
resulting in includability of the value of the interest
transferred in the income of the employees as of the date of
3
[T]he words of such an act as the Income Tax * * *
merely dance before my eyes in a meaningless
procession: cross-reference to cross-reference,
exception upon exception * * *. * * * at times I
cannot help recalling a saying of William James about
certain passages of Hegel: that they were no doubt
written with a passion of rationality; but that one
cannot help wondering whether to the reader they have
any significance save that the words are strung
together with syntactical correctness. * * * [Hand,
"Thomas Walter Swan," 57 Yale L.J. 167, 169 (1947).]
- 6 -
transfer, i.e., March 13, 1992. Petitioner claims the deduction
at issue based on section 83(h)4 and section 1.83-6(a)(3), Income
Tax Regs.5 Section 83(h) allows a deduction in the year the
amount of a transfer is included in the employees' income.
Section 1.83-6(a)(3)(first sentence), Income Tax Regs., allows an
accrual basis employer an earlier deduction, "in accordance with
his method of accounting", where there has been a transfer of
"substantially vested" assets to the employee.
4
Sec. 83(h) provides:
(h) Deduction by Employer.--In the case of a
transfer of property to which this section applies or a
cancellation of a restriction described in subsection
(d), there shall be allowed as a deduction under
section 162, to the person for whom were performed the
services in connection with which such property was
transferred, an amount equal to the amount included
under subsection (a), (b), or (d)(2) in the gross
income of the person who performed such services. Such
deduction shall be allowed for the taxable year of such
person in which or with which ends the taxable year in
which such amount is included in the gross income of
the person who performed such services.
5
Sec. 1.83-6(a), Income Tax Regs. provides in pertinent part:
(3) Exceptions. Where property is substantially
vested upon transfer, the deduction shall be allowed to
such person in accordance with his method of accounting
(in conformity with sections 446 and 461). In the case
of a transfer to an employee benefit plan described in
§ 1.162-10(a) or * * * [other transfers not applicable
in this case], section 83(h) and this section do not
apply.
However, should another section require that petitioner not use
its usual method of accounting, sec. 1.461-1(a)(2)(iii)(A),
Income Tax Regs., provides that the sec. 461 rules will defer to
that other provision.
- 7 -
Section 1.83-6(a)(3)(second sentence), Income Tax Regs.,
provides that section 83(h) and the regulations thereunder do not
apply to "a transfer to an employee benefit plan described in
§ 1.162-10(a)". Section 1.162-10(a), Income Tax Regs.,6 provides
that, as a general rule, a taxpayer may deduct vacation pay and
severance pay under that section. However, deductions for
amounts used to provide benefits under a "deferred compensation
plan of the type referred to in section 404(a) * * * shall be
governed by the provisions of section 404 and the regulations
issued thereunder." Sec. 1.162-10(a)(third and fourth
sentences), Income Tax Regs.
6
Sec. 1.162-10(a), Income Tax Regs., provides:
Certain employee benefits.
(a) In General. Amounts paid or accrued by a
taxpayer on account of injuries received by employees
and lump-sum amounts paid or accrued as compensation
for injuries are proper deductions as ordinary and
necessary expenses. Such deductions are limited to the
amount not compensated for by insurance or otherwise.
Amounts paid or accrued within the taxable year for
dismissal wages, unemployment benefits, guaranteed
annual wages, vacations, or a sickness, accident,
hospitalization, medical expense, recreational,
welfare, or similar benefit plan, are deductible under
section 162(a) if they are ordinary and necessary
expenses of the trade or business. However, except as
provided in paragraph (b) of this section [not
applicable herein], such amounts shall not be
deductible under section 162(a) if, under any
circumstances, they may be used to provide benefits
under a stock bonus, pension, annuity, profit-sharing,
or other deferred compensation plan of the type
referred to in section 404(a). In such an event, the
extent to which these amounts are deductible from gross
income shall be governed by the provisions of section
404 and the regulations issued thereunder. [Emphasis
added.]
- 8 -
Section 404(a) covers deductions in respect of contributions
to pension trusts, employees' annuities, stock bonus and profit-
sharing trusts, foreign trusts, and other plans "deferring the
receipt of * * * compensation." Section 404(a)(5) deals with
deductions in respect of "other plans" specifically including
deductions for "vacation pay which is treated as deferred
compensation".7 Section 404(b) provides that any method or
arrangement that has the effect of a plan deferring the receipt
of compensation or other benefits for employees will be treated
as a deferred compensation plan. Section 1.404(b)-1T A-2,
Temporary8 Income Tax Regs., 51 Fed. Reg. 4312, 4321-4322 (Feb.
4, 1986), provides:
(a) For purposes of section 404(a), (b), and (d),
a plan, or method or arrangement, defers the receipt of
compensation or benefits to the extent it is one under
which an employee receives compensation or benefits
more than a brief period of time after the end of the
employer's taxable year in which the services creating
7
Sec. 404(a)(5) provides:
(5) Other plans.--If the plan is not one included
in paragraph (1), (2), or (3), in the taxable year in
which an amount attributable to the contribution is
includible in the gross income of employees
participating in the plan, but, in the case of a plan
in which more than one employee participates only if
separate accounts are maintained for each employee.
For purposes of this section, any vacation pay which is
treated as deferred compensation shall be deductible
for the taxable year of the employer in which paid to
the employee.
8
Temporary regulations are accorded the same weight as final
regulations. Truck & Equipment Corp. v. Commissioner, 98 T.C.
l41, 149 (1992); Zinniel v. Commissioner, 89 T.C. 357 (1987),
affd. 883 F.2d 1350 (7th Cir. 1989).
- 9 -
the right to such compensation or benefits are
performed. The determination of whether a plan, or
method or arrangement, defers the receipts of
compensation or benefits is made separately with
respect to each employee and each amount of
compensation or benefit. * * *
(b)(1) A plan, or method or arrangement, shall be
presumed to be one deferring the receipt of
compensation for more than a brief period of time after
the end of an employer's taxable year to the extent
that compensation is received after the 15th day of the
3rd calendar month after the end of the employer's
taxable year in which the related services are rendered
("the 2 1/2 month period"). * * *
* * * * * * *
(c) A plan, or method or arrangement, shall not be
considered as deferring the receipt of compensation or
benefits for more than a brief period of time after the
end of the employer's taxable year to the extent that
compensation or benefits are received by the employee
on or before the end of the applicable 2 1/2 month
period. * * * [Emphasis added.]
To summarize our complicated march through the Code and
regulations, section 1.83-6(a)(3), Income Tax Regs., implementing
section 83(h), refers us to section 1.162-10(a), Income Tax
Regs., which refers us to section 404(a)(5), which refers us to
section 404(b)(1) and (2), as implemented by section 1.404(b)-1T,
Temporary Income Tax Regs., 51 Fed. Reg. 4321 (Feb. 4, 1986),
which contains the test that we must apply.
Section 1.404(b)-1T, Temporary Income Tax Regs., provides
that if the benefits were "received" within the 2-1/2 month
period,9 the amounts would not be deferred compensation, they
9
Two and 1/2 months is often used interchangeably with 75 days.
(continued...)
- 10 -
would not be paid pursuant to "plans" under section 404(b), they
would not be described in section 404(a)(5), and thus section
1.162-10(a), Income Tax Regs., would not apply, and petitioner
would be entitled to its deduction under section 83(h) and
section 1.83-6(a)(3), Income Tax Regs.
According to the regulations, if the benefits in question
were not "received" within the 2-1/2 month period, it is presumed
that the amounts would be deferred compensation, they would be
paid pursuant to "plans" under section 404(b), they would be
described in section 404(a)(5), and then section 1.162-10(a),
Income Tax Regs., would apply, sending us back to section
404(a)(5) for the deductibility of the amounts.
The parties have stipulated that the amounts specified in
the letter of credit were includable in the employees' gross
income under section 83 as of the date of transfer. Petitioner
maintains that since the amounts were vested, funded, and
includable within the 2-1/2 month period, they must have been
"received" within that period for purposes of section 1.404(b)-
1T, Temporary Income Tax Regs. Respondent contends that mere
includability in income is not enough, that "received" requires
that the employee must have been able to put the amount included
"in his pocket" for the 2-1/2 month "window" under the
9
(...continued)
For an illuminating discussion of the correlation between 2-1/2
months and 75 days see Mansuss Realty Co. v. Commissioner, 143
F.2d 286 (2d Cir. 1944), affg. 1 T.C. 932 (1943).
- 11 -
regulations to apply. Thus, we must decide whether includability
of income is sufficiently equivalent to the receipt of income to
satisfy the 2-1/2 month rule. An inextricable element in
arriving at this decision is whether petitioner "paid" the
benefits within the 2-1/2 month period since the statutory
provision, i.e., section 404(a)(5), speaks in terms of payment in
respect of vacation pay and, as will subsequently appear, see
infra pp. 15-17, the legislative history reveals that Congress
considered that payment provided the foundation for the
application of the 2-1/2 month rule. Indeed, this emphasis on
payment, i.e., "paid", may account for respondent's "in the
pocket" interpretation of the word "received" in the temporary
regulations, for it is clear that, if the employees could put the
vacation pay in their pockets, it must have been paid to them.
Section 404(a)(5) (first sentence) allows a deduction in
respect of deferred compensation plans generally when an item is
"includible in the gross income of employees" (emphasis added),
as does section 1.404(a)-12(b), Income Tax Regs. Similarly,
section 83(h) allows a deduction when an item is included in the
employee's income. Furthermore, section 1.461(h)-4T, Temporary
Income Tax Regs., 51 Fed. Reg. 4329 (Feb. 4, 1986), indicates
that includability is the test of receipt for section 404.10 In
10
Sec. 1.461(h)-4T, Q&A-1, Temporary Income Tax Regs., 51 Fed.
Reg. 4312, 4329, provides:
Q-1: What is the relationship between the economic
(continued...)
- 12 -
this frame of reference, it is at least arguable that
includability in income and receipt are matching elements with
the result that since the amounts represented by the letter of
credit were includable in the income of the employees as of March
13, 1992, they were "received" by the employees on that date and
the "window" provided by the 2-1/2 month rule of section
1.404(b)-1T(c) has been satisfied. Such a conclusion would be
based upon the proposition that the word "received" in the
regulations, standing as it does without any qualifying adjective
such as "actually", means nothing more than received for income
tax purposes.
However, we find it necessary to go beyond this simple
analysis because the governing statutory provision, section
404(a)(5), speaks in terms of payment as well as includability in
income. Before proceeding to discuss the implications of this
statutory thrust, there are several tangential elements which
should be noted. First, the 2-1/2 month rule is not specifically
10
(...continued)
performance requirements of section 461(h) and sections 404
and 419?
A-1: * * * In the case of a contribution or compensation
subject to section 404 or 419, pursuant to the authority
under section 461(h)(2), economic performance occurs (i) in
the case of a plan subject to section 404, either as the
contribution is made under the plan or, if section 404(a)(5)
is applicable, as an amount attributable to such
contribution is includible in the gross income of an
employee. * * * [Emphasis added.]
See discussion of sec. 1.461(h)-4T, which mirrors this
explanation, in Rev. Rul. 88-68, 1988-2 C.B. 117.
- 13 -
set forth in a statutory provision dealing with deferred
compensation arrangements but is a creature of regulations and
recognition in legislative history. See Avon Products, Inc. v.
United States, 97 F.3d 1435 (Fed. Cir. 1996); Truck & Equipment
Corp. v. Commissioner, 98 T.C. 141, 145-154 (1992). Second, we
recognize that it does not necessarily follow that funds have
been paid because they have been constructively received for
income tax purposes. See Gillis v. Commissioner, 63 T.C. 11, 17
(1974). Third, the decided cases are less than models of clarity
in delineating distinctions in meaning among "included",
"received", and "paid", a view reflected in the opinion of the
Court of Appeals for the Ninth Circuit in Albertson's Inc. v.
Commissioner, 42 F.3d 537, 543 (9th Cir. 1994), affg. 95 T.C. 415
(1990). The Ninth Circuit noted that, for nonqualified plans,
"the employer is ordinarily allowed no deduction for
contribution, payments or benefits until they are taxed to the
employee", which it equated with a denial of the "employer's
deduction until the deferred amount is included in the employee's
income", meaning in its view that "current law * * * defers the
* * * deduction "until the year of payment. The court concluded
that "an employer cannot take tax deductions for payments to its
employees until the DCA participants include those payments in
their taxable income--that is, until the employees actually
receive the compensation promised to them." Albertson's Inc. v.
Commissioner, 42 F.3d at 543 (citations omitted and emphasis
- 14 -
added).
Against the foregoing background, we turn to an analysis of
whether there was not only includability in income but also
payment as of March 13, 1992. If these two elements are found to
be present, we think there need be no further consideration of
the word "received" in the regulations because the combination of
includability and payment must necessarily be equated with
"received". To better understand our analysis, we repeat the
text of section 404(a)(5):
(5) Other plans.--If the plan is not one included
in paragraph (1), (2), or (3), in the taxable year in
which an amount attributable to the contribution is
includible in the gross income of employees
participating in the plan, but, in the case of a plan
in which more than one employee participates only if
separate accounts are maintained for each employee.
For purposes of this section, any vacation pay which is
treated as deferred compensation shall be deductible
for the taxable year of the employer in which paid to
the employee.
Clearly, section 404(a)(5) on its face provides no clear
guidance to the question before us, since it speaks (first
sentence) in terms of "includable in income" in respect of
deferred compensation other than vacation pay and in terms of
"paid" in respect of vacation pay (second sentence). Under these
circumstances, we find it appropriate, indeed mandated, that we
look to the legislative history, particularly since that history
articulates the 2-1/2 month rule, which is our main concern. See
Hospital Corp. of America v. Commissioner, 107 T.C. 116 (1996),
particularly at 129. Furthermore, the use of legislative history
- 15 -
in this case is particularly appropriate where neither party
questions the validity of the 2-1/2 month rule, but merely its
application.
Prior to 1987, section 404(a)(5) contained only the first
sentence; the rules governing vacation pay were contained in
section 463, which provided for a deduction based on the
establishment of a reserve. In 1987, when the Omnibus Budget
Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330, was
being considered, both the House and Senate proposed to repeal
section 463 and make no change in section 404(a)(5) as it then
stood. In so doing, the House Ways and Means Committee and the
Senate Finance Committee discussed the proposed action in the
following identical language:
7. Reserve for accrued vacation pay (sec. 10121 of the
bill and sec. 463 of the Code)
Present Law
Under present law, an accrual-method taxpayer
generally is permitted a deduction in the taxable year
in which all the events have occurred that determine
the fact of a liability and the amount thereof can be
determined with reasonable accuracy (the "all-events"
test). In determining whether an amount has been
incurred with respect to any item during the taxable
year, all events that establish liability for such
amount are not treated as having occurred any earlier
than the time economic performance occurs (sec.
461(h)). With respect to a liability that arises as a
result of another person's providing services to the
taxpayer (such as the liability to provide vacation pay
in exchange for service by an employee), economic
performance generally occurs when such other person
provides the services.
In order to ensure the proper matching of income
and deductions in the case of deferred benefits (such
- 16 -
as vacation pay earned in the current taxable year, but
paid in a subsequent year) for employees, an employer
generally is entitled to claim a deduction in the
taxable year of the employer in which ends the taxable
year of the employee in which the benefit is includible
in gross income (sec. 404(b)). This rule applies to
deferred benefits without regard to the economic
performance rules. Consequently, an employer is
entitled to a deduction for vacation pay in the taxable
year of the employer in which ends the earlier of the
taxable year of the employee for which the vacation pay
(1) vests (if the vacation pay plan is funded by the
employer), or (2) is paid.
An exception to this rule applies to amounts that
are paid within 2-1/2 months after the close of the
taxable year of the employer in which the vacation pay
is earned. Such amounts are not subject to the
deduction timing rules applicable to deferred benefits,
but are subject to the general rules under which an
employer is entitled to a deduction when performance
occurs (i.e., when the services of the employee for
which vacation pay is earned are performed). Because
amounts paid within 2-1/2 months after the close of the
employer's taxable year generally will qualify for the
exception to the economic performance requirements,
such amounts generally will be deductible for the
preceding taxable year (the year in which the vacation
pay is earned) even though the employee does not
include the benefit in income in the preceding taxable
year.
* * * * * * *
Reasons for Change
The special rules under present law relating to
the reserve for accrued vacation pay create a disparity
in tax treatment between accrued vacation pay and other
deferred benefits. The committee believes that the
timing of deductions for vacation pay should not be
more favorable than the timing of deductions for other
deferred benefits.
Explanation of Provision
The special rule that permits taxpayers a
deduction for additions to a reserve for vacation pay
would be repealed. Accordingly, under the bill,
deductions for vacation pay would be allowed in any
taxable year for amounts paid, or funded amounts that
- 17 -
vest, during the year or within 2-1/2 months after the
end of the year. [H. Rept. 100-391 at 1061-1062
(1987); S. Print 100-63 at 143-144 (1987); emphasis
added.11]
Respondent argues that a proper reading of the foregoing
language indicates that the committees intended to draw a
distinction between situations where the vacation pay was vested
and funded and where it is paid. We disagree. Given a reading
of the entire expression of the committees' viewpoint, we think
they intended to equate, rather than separate, funding and
vesting and payment. In this connection, we also are of the view
that the broad language of the reports, particularly the
reference to "deferred benefits" with vacation pay, is simply an
example which indicates that the committees intended the 2-1/2
month rule to apply to deferred benefits such as severance pay,
which is involved herein along with vacation pay.
Respondent further seeks to buttress her position by
pointing to the second sentence of section 404(a)(5) (see supra
note 7) which was added by the conference committee with the
following explanation:
The conference agreement follows the Senate amendment
with modifications. The conference agreement provides
that vacation pay earned during any taxable year, but
not paid to employees on or before the date that is 2-
1/2 months after the end of the taxable year, is
deductible for the taxable year of the employer in
which it is paid to employees. This provision is an
11
Almost identical language was contained in the committee
reports when changes in the then existing reserve provision were
made in 1986. H. Rept. 99-426 (1985), 1986-3 C.B. (Vol. 2) 641;
S. Rept. 99-313 (1985), 1986-3 C.B. (Vol. 3) 674.
- 18 -
exception to the general rule for deferred compensation
and deferred benefits pursuant to which an employer is
allowed a deduction for the taxable year of the
employer in which ends the taxable year of the employee
in which the compensation or benefit is includible in
gross income. [H. Conf. Rept. 100-495, 920 (1987),
1987-3 C.B. 193, 201; emphasis added.]
Respondent argues that this change, coupled with the absence
of any reference to funded and vested amounts, shows that the
conference committee (and hence the Congress which enacted the
added sentence) intended to exclude such amounts from payment and
permit only actual "cash in pocket" to be considered as having
been paid. Again, we disagree. A careful reading of the
conference committee report shows that the committee was making a
change only in the timing of the deduction in respect of vacation
pay in contrast to the timing of other deferred compensation
payments, and then only in the context of clear recognition that
its change applied only to payments after the 2-1/2 month period.
Having found our way through the statutory briarpatch of
sections 83, 162, and 404 and the regulations thereunder, it is
obvious that the disposition of this case turns on a single,
straightforward question, namely whether petitioner paid the
vacation and severance pay within the 2-1/2 month period.
Viewing the totality of the statutory and regulatory provisions
and the pertinent legislative history in their entirety, we think
that petitioner did so by means of an irrevocable parting of
funds, through the creation of the letter of credit, with the
separately designated employee-beneficiaries, which was not
- 19 -
subject to the claims of petitioner's creditors and which
constituted amounts includable in the income of such employee-
beneficiaries as of March 13, 1992.
As a consequence and in accordance with section 1.404(b)-1T,
Temporary Income Tax Regs., neither the vacation nor the
severance pay constituted a deferred compensation plan to which
section 404(a)(5) applies. This being the case, section 83(h)
and section 1.83-6(a)(3), Income Tax Regs., apply, and petitioner
is entitled to deduct the amounts in question in accordance with
its normal accrual method of accounting, i.e., for its fiscal
year ending December 28, 1991.
In order to take into account concessions by petitioner on
other issues,
Decision will be entered
under Rule 155.