                          T.C. Memo. 1997-70



                       UNITED STATES TAX COURT



         LUCKY STORES, INC., AND SUBSIDIARIES, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent*


     Docket No.    4446-93.            Filed February 10, 1997.



          P filed a Motion for Reconsideration of our Opinion
     reported as Lucky Stores, Inc., & Subs. v. Commissioner, 107
     T.C. 1 (1996) on the grounds that we failed to take into
     consideration R's long-standing administrative practice of
     applying Rev. Rul. 76-28, 1976-1 C.B. 106, to multiemployer
     defined benefit plans, and that R failed to fully and fairly
     apprise the Court of respondent's actual practices and
     interpretations in this regard. In addition, P filed two
     Motions Requesting Judicial Notice. Held: P's Motion for
     Reconsideration and Motions Requesting Judicial Notice will
     be denied.




     *
      This opinion supplements our previously filed Opinion in
Lucky Stores, Inc., & Subs. v. Commissioner, 107 T.C. 1 (1996).
                                 - 2 -

     Paul J. Sax, Richard E.V. Harris, and Richard A.

Gilbert, for petitioner.

     Alan Summers, Kevin G. Croke, and Elizabeth L. Groenewegen,

for respondent.


                    SUPPLEMENTAL MEMORANDUM OPINION


     NIMS, Judge:    In a timely filed Motion for Reconsideration

(Motion) pursuant to Rule 161, petitioner requests the Court to

reconsider its Opinion reported as Lucky Stores, Inc., & Subs. v.

Commissioner, 107 T.C. 1 (1996).    The Opinion is incorporated

herein by this reference.

     Except where otherwise noted, all Rule references are to the

Tax Court Rules of Practice and Procedure.    All section

references are to sections of the Internal Revenue Code in effect

for the years in issue.

     Reconsideration under Rule 161 serves the limited purpose of

correcting substantial errors of fact or law, and allows the

introduction of newly discovered evidence that the moving party

could not have introduced, by the exercise of due diligence, in

the prior proceeding.     Westbrook v. Commissioner, 68 F.3d 868,

879-880 (5th Cir. 1995), affg. per curiam T.C. Memo. 1993-634;

see Estate of Scanlan v. Commissioner, T.C. Memo. 1996-414.       The

granting of a motion for reconsideration rests with the

discretion of the Court, and we usually do not exercise our

discretion in the absence of a showing of unusual circumstances
                                - 3 -

or substantial error.    CWT Farms, Inc. v. Commissioner, 79 T.C.

1054, 1057 (1982), affd. 755 F.2d 790 (11th Cir. 1985).

Petitioner's Motion and related filings do not show any unusual

circumstances or substantial error with respect to our Opinion.

     In our Opinion, we held that petitioner may not deduct in a

single taxable year contributions to 29 collectively bargained

defined benefit plans made over a period of 20 (in some cases 19)

months.   In the Motion petitioner alleges that the Court erred in

that this holding contradicts 20 years of administrative practice

that applied Rev. Rul. 76-28, 1976-1 C.B. 106, to multiemployer

defined benefit plans.   Petitioner's Motion also alleges that

respondent's counsel misled the Court by not bringing to the

Court's attention the history of respondent's actual practices

and interpretations in this area.

     In addition to the Motion, petitioner has also filed a

Motion Requesting Judicial Notice and a Second Motion Requesting

Judicial Notice (collectively Judicial Notice Motions) supported

by two "Declarations" under penalty of perjury by Richard E.V.

Harris, to which are attached numerous exhibits.   The

Declarations and attached exhibits have also been filed, and thus

become a part of the record.   They are accordingly referred to in

this Supplemental Memorandum Opinion to the extent we deem it

necessary to do so to address arguments contained in petitioner's

Motion and Judicial Notice Motions.
                               - 4 -

     Rule 201(f) of the Federal Rules of Evidence provides that

judicial notice may be taken at any stage of the proceeding.

Petitioner's Judicial Notice Motions will be denied in this case,

however, because their many paragraphs constitute nothing more

than a hodgepodge of argument and statements with respect to the

alleged action or inaction of respondent's counsel, of other

taxpayers, and of Congress, and with respect to collectively

bargained multiemployer pension plans.

     Unfortunately for petitioner's position is the overlooked

central fact that section 404(a)(6), from which the disputed

administrative pronouncements have flowed, is a timing provision,

not a free-standing substantive provision intended to override

other deduction provisions of section 404(a).   Section 404 is

entitled "DEDUCTION FOR CONTRIBUTIONS OF AN EMPLOYER TO AN

EMPLOYEES' TRUST".   Section 404(a)(6) is entitled "Time when

contributions deemed made" (emphasis added).

     The private rulings attached to petitioner's various filings

all uniformly hold that post-yearend contributions (grace period

contributions) to a qualified employees' benefit plan (including

in some cases multiemployer plans), if made within the parameters

spelled out in section 404(a)(6), may be deducted in the prior

year, but only if they fall within the deduction limitations of

section 404(a) and related subsections.   Since petitioner's

Motion and the Judicial Notice Motions never address this all-

important proviso, petitioner's claim, even if correct, that
                              - 5 -

respondent failed to alert the Court to the existence of

multiemployer plan private rulings becomes wholly irrelevant.

     The documents submitted with petitioner's Motion and

Judicial Notice Motions themselves belie petitioner's argument

that the result reached in our Opinion is at odds with

respondent's long-standing administrative practice.   This is

amply illustrated by the following quotations:

          [1.] The rules contained in Rev. Rul. 76-28 regarding
     the application of Code section 404(a)(6) are related only
     to the timing of contributions for deduction purposes.
     * * * Corporation M is entitled to claim a deduction for
     such [1979] contribution to the extent the deduction does
     not exceed the maximum deductible contribution for 1978.
     [Priv. Ltr. Rul. 7945115, (Aug. 8, 1979); emphasis added.]

          [2.] You state that Corporation M makes contributions
     within the deduction limits imposed by section 404(a)(1) and
     404(a)(7) of the Code * * *. We conclude * * * that * * *
     Corporation M may deduct for 1979 and later taxable years
     under section 404(a)(1) and section 404(a)(6) of the Code
     contributions not in excess of the limits of section
     404(a)(1) and section 404(a)(7) * * *. [Priv. Ltr. Rul.
     8010123 (Dec. 17, 1979); emphasis added.]

          [3.] While the deductions also must come within the
     limitations of I.R.C. section 404(a), it is clear that those
     limits were not exceeded by the taxpayer. [Submission
     of a law firm in support of a ruling request; emphasis
     added.]

          [4.] This ruling does not consider the actual amounts
     deductible for the 1977 taxable year. Undated Technical
     Advice Memorandum ruling involving years 1977-1978.

          [5.] The total amount that may be deducted, however,
     is limited by the dollar amount determined under
     section 404(a)(1)(A) of the Code. [Tech. Adv. Mem. 8714008
     (Dec. 17, 1986).]

          [6.] In addition, the principles of Rev. Rul. 76-28,
     regarding the application of section 404(a)(6), are related
     only to the timing of contributions for deduction purposes
                                - 6 -

     and do not affect the computation of the plan's deductible
     limit under section 404(a). [Tech. Adv. Mem. 8714008 (Dec.
     17, 1986); emphasis added.]

          [7.] However, the principles contained in Rev. Rul.
     76-28 regarding the application of section 404(a)(6) are
     related only to the timing of contributions for deduction
     purposes and do not affect the computation of the plan's
     deductible limit under section 404(a). [Tech. Adv. Mem.
     8543002 (April 30, 1985); emphasis added.]

     In short, the materials proffered by petitioner, to support

its argument that the Court's Opinion is inconsistent with

respondent's long-standing administrative position regarding

section 404(a)(6) and Rev. Rul. 76-28, in fact wholly support the

rationale of our Opinion and the result reached therein.   In this

connection, it may also be useful to note that in our Opinion we

pointed out that Technical Advice Memorandum 8210014, upon which

petitioner so strongly relied, itself flatly states that "this

ruling does not consider the actual amounts deductible for the *

* * [relevant] taxable year".    Lucky Stores, Inc. & Subs. v.

Commissioner, 107 T.C. at 16.   In all of its moving papers,

petitioner simply ignores these constantly repeated caveats, so

it is difficult to give credence to petitioner's insistence that

the Court has disregarded long-standing administrative practice.

Deduction limitations and petitioner's failure to come within

them are at the focal point of our Opinion.

     Even in the absence of the foregoing, as we stated in our

Opinion, revenue rulings are not ordinarily precedential in this

Court.   Id. at 13 (citing Gordon v. Commissioner, 88 T.C. 630,
                                - 7 -

635 (1987)).   Moreover, unless the Secretary establishes

otherwise by regulations, a "written determination" may not be

used or cited as precedent by another taxpayer.    Sec. 6110(j)(3);

sec. 301.6110-7(b), Proced. & Admin. Regs.    Written

determinations include both private rulings and technical advice

memoranda such as those excerpted above.    Sec. 301.6110-2(a),

Proced. & Admin. Regs.

     As to the actual merits of the case, section 413(b)(7)

provides that "Each applicable limitation provided by section

404(a) shall be determined as if all participants in the plan

were employed by a single employer."    Section 413(b)(7) also

provides that anticipated employer contributions are to be

determined in a manner consistent with the manner in which actual

contributions are determined.

     In the prior proceeding petitioner argued that under section

413(b)(7) its contributions were within the deductible limits of

section 404(a) because the anticipated contributions for all of

the CBA plans to which petitioner contributed for their

respective plan years did not exceed any maximum deduction

limitation under section 404(a).   But petitioner's own

contributions, if the so-called grace period contributions are

included, as petitioner insists they should be, substantially

exceeded its anticipated contributions.    In our Opinion we stated

that since section 413(b)(7) requires that the computation of

anticipated contributions be consistent with actual employer
                               - 8 -

contributions, a taxpayer (petitioner included) may not

arbitrarily expand its own deduction limitation for any taxable

year by the simple expedient of deducting actual contributions

that are inconsistent with its anticipated contributions.     Lucky

Stores, Inc., & Subs. v. Commissioner, 107 T.C. at 14.     If any

one employer-contributor to a multiemployer plan could expand its

deduction limitation by this method, all could do so, a result

not intended by section 413(b)(7).     Nowhere in any of its moving

papers does petitioner attempt to address this point.

     Petitioner cites Airborne Freight Corp. v. United States, 76

AFTR 2d 95-7497, 96-1 USTC par. 50,004 (W.D. Wash. 1995), as

being the only other decision to consider the issue herein.

Airborne Freight Corp., however, is factually distinguishable

from the instant case.   Our Opinion took into account testimony

by the plan administrator that she customarily determined the

minimum funding standards on an annual basis with reference to

hours worked by covered employees before the year closed.    This

testimony was probative that the payments in question, insofar as

they were based on wages earned after the year's end, were not

treated in the same manner that the CBA plans would treat a

payment actually received on the last day of the taxable year.

See Lucky Stores, Inc., & Subs. v. Commissioner, 107 T.C. at 13-

15; cf. Rev. Rul. 76-28, 1976-1 C.B. 106.    The order granting

plaintiff's motion for summary judgment in Airborne Freight
                               - 9 -

Corp., on the other hand, made no mention of whether testimony to

a similar effect was received in that case.

     Furthermore, the District Court in Airborne Freight Corp.

did not directly address the question of the deduction

limitations of section 404(a), but instead relied almost entirely

upon section 404(a)(6) and Rev. Rul. 76-28 in holding for the

taxpayer.   However, referring also to section 413(b)(7), the

District Court rejected the IRS argument, as phrased by the

court, "that by taking more of a deduction for the 1989 tax year

than had been anticipated, AFC interfered with other employers'

ability to estimate the plan-wide deductible limit".     Airborne

Freight Corp. v. United States, 76 AFTR 2d 95-7497, at 95-7499,

96-1 USTC par. 50,004, at 83,015 (W.D. Wash. 1995).    The court

went on to reason that because the taxpayer was late in filing

its 1989 tax return, it could not have interfered with other

employers' ability to calculate and claim their deductions.     As

indicated by our Opinion and the discussion above, we

respectfully disagree with the District Court's analysis in that

respect.

     A final word.   We emphasize that what petitioner seeks to

obtain by its one-time bunching of 19 or 20 months of

contributions in a single year is a permanent tax deferral.     This

concept is explicitly spelled out in an attachment to the

Declaration of Richard E. V. Harris, in the following words:

"Thus, assuming a [taxpayer] double extends its Federal income
                              - 10 -

tax return, it may be possible to realize a one-time tax savings

[sic] to the extent of the tax benefit on nine months of

contributions to the plan".   (Obviously, the bunching technique

could not be applied in any subsequent year because to do so

would require double counting of a bunched contributions.)    For

the reasons already articulated, we do not believe the limitation

of section 413(b)(7) permits the accelerated deduction of the

"[eight or] nine months of contributions" sought by petitioner in

this case.

     For the above reasons,




                                    An Order will be issued

                               denying petitioner's Motion

                               and the Judicial Notice Motions.
