                         106 T.C. No. 23



                     UNITED STATES TAX COURT


         LEAR EYE CLINIC, LTD., ET AL.,1 Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent*


     Docket Nos. 13406-90, 19117-90,           Filed June 10, 1996.
                   177-91.


     Gregory A. Robinson, Brad S. Ostroff, and Neil H. Hiller,

for petitioners.

     Anne W. Durning, for respondent.



          Held, for purposes of determining the limitation
     under sec. 415(b), I.R.C., on benefits of a plan, the
     term "service with the employer" shall include service
     with businesses that antedate the plan sponsor where
     the transition results in a mere technical change in
     the employment relationship and continuity otherwise


1
     Cases of the following petitioners are consolidated
herewith: Lear Eye Clinic, Ltd., An Arizona Professional
Corporation, docket No. 19117-90; and Brody Enterprises, Inc.,
docket No. 177-91.
*
     This opinion supplements our previously filed opinion in
Citrus Valley Estates, Inc. v. Commissioner, 99 T.C. 379 (1992),
affd. in part and remanded in part 49 F.3d 1410 (9th Cir. 1995).
                                 2

     exists in the substance and administration of the
     business.
          Held, further, in applying the foregoing to Lear,
     service with a sole proprietorship, which was
     incorporated and subsequently sponsored the plan, will
     count as service with the employer.
          Held, further, in Brody Enterprises, service with
     an alleged sole proprietorship and a law firm, neither
     of which had any continuous relationship to the sponsor
     of the plan, does not constitute service with the
     employer.


            SUPPLEMENTAL FINDINGS OF FACT AND OPINION

     CLAPP, Judge:   These cases are before the Court on remand

from the U.S. Court of Appeals for the Ninth Circuit for further

consideration consistent with that court's opinion.     Citrus

Valley Estates, Inc. v. Commissioner, 49 F.3d 1410 (9th Cir.

1995), affg. in part and remanding in part 99 T.C. 379 (1992).

Subsequent to the remand of these cases, the parties filed a

stipulation of facts (supplemental stipulation of facts) and

briefs relating to the issue on remand.

     The issue for decision on remand is whether the plan

participants properly counted their previous employment towards

the section 415(b) maximum benefit limitations.   We hold that the

participant in the Lear Eye Clinic plan properly counted his

previous employment, but the participant in the Brody Enterprises

plan did not.

     All section references are to the Internal Revenue Code as

in effect for the years in issue, and all Rule references are to
                                   3

the Tax Court Rules of Practice and Procedure, unless otherwise

indicated.

                         FINDINGS OF FACT

     In this opinion, we incorporate by reference the facts set

out in our opinion in Citrus Valley Estates, Inc. v.

Commissioner, 99 T.C. 379 (1992).       We set forth and discuss in

this opinion findings of fact arising from the supplemented

record.   We also incorporate by reference the supplemental

stipulation of facts.

Lear Eye Clinic, Ltd.

     In 1975, Samuel Pallin (Pallin) commenced practice as an

ophthalmic physician in Phoenix, Arizona.       His practice grew over

the years, offering various medical procedures performed by

Pallin or other physicians in the practice.       He practiced as a

sole proprietor from 1975 until October 1, 1979.       From sometime

in 1978 through October 1, 1979, the proprietorship employed

Gerald Walman (Walman) as an associate physician.       On October 1,

1979, Pallin and Walman incorporated Lear Eye Clinic, Ltd.2

(Lear).   Pallin and Walman owned 51 percent and 49 percent,

respectively, of the Lear stock.       The administration of the

medical practice and Pallin's duties and responsibilities did not

change as a result of the formation of Lear.       Nor did the

2
     Pallin and Walman incorporated the Eye Center, Ltd., and
later changed the name to Lear Eye Clinic, Ltd. For convenience,
the term Lear refers to the Eye Center, Ltd., as well as Lear Eye
Clinic, Ltd., unless otherwise indicated.
                                    4

practice's staff, physicians, or patients change due to the

formation of Lear.

     Effective October 1, 1984, Lear adopted a defined benefit

plan (the Lear plan).      Pallin was the only participant in the

plan.   The Lear plan's enrolled actuary used the following

information for Pallin for purposes of the actuarial

calculations:


         Date   of   birth                     5/8/41
         Date   of   spouse's birth            4/2/46
         Date   of   hire                     10/1/793
         Date   of   entry into the plan      10/1/84

On Form 5302, Census, attached to Form 5300, Application for

Determination for Defined Benefit Plan (Form 5302), Lear declared

that Pallin had 6 years of service with the employer as of

September 30, 1985.

     In 1985, Pallin and Walman decided to sever their individual

medical practices.      To accomplish this, Lear formed a subsidiary

which held Walman's portion of the practice and then spun the

subsidiary off to Walman.      Pallin retained ownership of Lear.

     On September 4, 1986, Lear received a favorable

determination letter from respondent qualifying the Lear plan

under section 401(a).      As of September 30, 1986, Lear had 25

employees.   Of those employees, all but Pallin were excluded or

ineligible to participate in the Lear plan.      The terms of the

3
     However, the actuary included Pallin's service as a sole
proprietor from 1975 in his sec. 415(b) computation.
                                  5

Lear plan limit the benefits payable under the plan to those

allowable under section 415.

     Lear adopted a money purchase plan effective October 1,

1979.   The money purchase plan was restated in its entirety as of

October 1, 1984, and again as of January 1, 1988.4

Brody Enterprises, Inc. (Brody Enterprises)

     In the summer of 1969, Marvin D. Brody (Brody) began working

as an estate and gift tax examiner for the Internal Revenue

Service (IRS) in Chicago, Illinois.   Brody worked with the IRS

until May 1973.   While employed with the IRS, Brody was covered

by the Civil Service Retirement System.   Brody was not covered by

any other retirement plan from 1969 through September 1977.

     From May 1973 to September 1977, Brody worked as an

associate attorney with the law firm of Altheimer & Gray in

Chicago, Illinois.   In September 1977, Brody moved from Chicago

to Phoenix, Arizona, and began working in the law firm of Ehmann

& Waldman, P.C.

     In late 1978 or early 1979, Ehmann, Waldman, and Brody

formed Ehmann, Waldman & Brody, P.C. (EWB P.C.) with each owning

one-third of the shares of the company.   EWB P.C. had three

retirement plans:    (1) The Pension Plan, a money purchase pension

plan adopted in 1971 and still in existence, (2) the Profit



4
     The parties have not elaborated on the money purchase plan,
and we leave it for them to determine under Rule 155 the extent,
if any, to which it affects the deficiencies in these cases.
                                  6

Sharing Plan, which merged with the Pension Plan on January 31,

1980, and (3) the Defined Benefit Plan (EWB P.C. Defined Benefit

Plan).   None of these plans is at issue in this case.    In

September 1978, after completing 1 year of service with EWB P.C.,

Brody became a participant in the Pension Plan.    Brody was a

participant in the EWB P.C. Defined Benefit Plan until its

termination in 1984.    The record does not reveal when Brody

became a participant in the EWB P.C. Defined Benefit Plan.      Brody

has no other records or information concerning the EWB P.C.

Defined Benefit Plan.

     On January 31, 1983, Brody terminated his employment with

EWB P.C., and EWB P.C. redeemed his stock therein.

     On February 1, 1983, Brody incorporated Brody Enterprises,

Inc.,5 with Brody as its sole shareholder and employee.    On June

13, 1983, Brody Enterprises adopted the Brody Enterprises Defined

Benefit Pension Plan (the Brody Enterprises plan), effective

February 1, 1983.    The Brody Enterprises plan is at issue in

docket No. 177-91.    The terms of the Brody Enterprises plan limit

the benefits payable under the plan to those allowable under

section 415.

     On Form 5302, Brody Enterprises declared that Brody had 2

years of service with the employer as of May 31, 1985.


5
     Brody incorporated Marvin D. Brody, P.C., and later changed
the name to Brody Enterprises, Inc. For convenience, we refer to
Brody Enterprises throughout this opinion.
                                  7

     On November 1, 1986, Ehmann, Waldman & Brody, P.A. (EWB

P.A.) was formed.   Brody was not a shareholder or an officer of

EWB P.A.   The record does not reveal who formed EWB P.A.

Sometime around November 1, 1986, Brody ceased employment with

Brody Enterprises and entered into an employment contract with

EWB P.A.   On November 1, 1987, Brody terminated his employment

with EWB P.A.

                               OPINION

     Each of petitioners' plans was a small defined benefit

pension plan.   A defined benefit pension plan provides a

participant at retirement with the benefit stated in the plan.

The costs of benefits payable from such plans are funded

incrementally on an annual basis over the preretirement period.

Secs. 404, 412.   Contributions made to the plans, within certain

limits, are deductible.   Sec. 404(a)(1).   Earnings on the

contributions are not taxed as they accumulate.    Sec. 501(a).

Plan assets are taxed to participants only as they are paid out

as benefits.    Sec. 402(a)(1).   The payment of benefits under a

qualified plan is limited.    Sec. 415.   These cases focus on the

limitations in section 415.

     Section 415 was added to the Internal Revenue Code by

section 2004(a)(2) of the Employee Retirement Income Security Act

of 1974 (ERISA), Pub. L. 93-406, 88 Stat. 829, 979.    The

enactment of ERISA was a legislative attempt to assure equitable

and fair administration of pension plans and to remedy problems
                                 8

that had arisen, which prevented many of those plans from

achieving their full potential as a source for retirement income.

Citrus Valley Estates, Inc. v. Commissioner, 99 T.C. at 399.

     In conjunction with its effort to expand the number of

employees participating in employer-financed plans, Congress also

placed limits on the amounts of pension contributions and

benefits available under those plans.

     [I]t is not in the public interest to make the
     substantial favored tax treatment associated with
     qualified retirement plans available without any
     specific limitation as to the size of the contributions
     or the amount of benefits that can be provided under
     such plans. The fact that present law does not provide
     such specific limitations has made it possible for
     extremely large contributions and benefits to be made
     under qualified plans for some highly paid individuals.
     While there is, of course, no objection to large
     retirement benefits in themselves, your committee
     believes it is not appropriate to finance extremely
     large benefits in part at public expense through the
     use of the special tax treatment. * * *

     *        *         *        *        *        *        *

          Moreover, to prevent abuse, the full [section
     415(b)(1)] maximum benefit may be paid only to
     individuals who have 10 years or more service. Where
     an individual has served for less than 10 years, the
     maximum permissible benefit is reduced proportionately.
     [H. Rept. 93-807, at 35-36 (1974), 1974-3 C.B. (Supp.)
     236, 270-271.]

     Section 415(a) precludes qualified plans from providing for

payment of annual benefits in excess of an amount determined

under subsection (b).   Section 415(b)(1) establishes an annual

benefit limitation as the lesser of a dollar amount ($75,000, as

adjusted under section 415(b)(2), for the years at issue) or 100
                                 9

percent of the participant's average compensation for his 3

highest paid years with the plan sponsor.   For the years at

issue, section 415(b)(5) reduced the subsection (b)(1) dollar

limitation as follows:

          (5) Reduction for service less than 10 years.--
     In the case of an employee who has less than 10 years
     of service with the employer, the limitation referred
     to in paragraph (1) * * * shall be the limitation
     determined under such paragraph * * * multiplied by a
     fraction, the numerator of which is the number of years
     (or part thereof) of service with the employer and the
     denominator of which is 10.

Thus, a qualified defined benefit pension plan may not provide

for payment of benefits in excess of the dollar limitation of

section 415(b)(1) as further limited by section 415(b)(5).6

     In Citrus Valley, we held that section 404(j)(1) limits

deductible contributions to the amount necessary to fund the

benefits payable under section 415 determined at the time of the

contribution in question.   Citrus Valley Estates, Inc. v.

Commissioner, 99 T.C. at 447.   The dispute in these cases focuses

on the amounts of benefits payable under section 415 determined

at the time of the contributions in question.   Specifically, at

issue is whether Pallin's and Brody's prior employment with

entities other than the plans' sponsors constitutes "service with

the employer" as that term is used in section 415(b)(5).

6
     For plan years beginning after Dec. 31, 1986, sec. 415(b)(5)
was amended to restrict the sec. 415(b)(1) dollar limitation for
participants with less than 10 years of participation in the
plan. See Tax Reform Act of 1986, Pub. L. 99-514, sec. 1106, 100
Stat. 2085, 2424.
                                  10

     We begin with the presumption that respondent's

determination is correct, and petitioners have the burden of

proving otherwise.    Rule 142(a); Welch v. Helvering, 290 U.S.

111, 115 (1933); Dellacroce v. Commissioner, 83 T.C. 269, 279-280

(1984).    Deductions and credits are a matter of legislative

grace, and petitioners bear the burden of proving entitlement to

any deduction or credit claimed on their returns.       INDOPCO, Inc.

v. Commissioner, 503 U.S. 79 (1992); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).

     In construing a statute, courts generally seek the plain and

literal meaning of its language.       United States v. Locke, 471

U.S. 84, 93, 95-96 (1985); United States v. American Trucking

Associations, Inc., 310 U.S. 534, 543 (1940).      For that purpose,

courts generally assume that Congress uses common words in their

popular meaning.     Commissioner v. Groetzinger, 480 U.S. 23, 28

(1987); see also Addison v. Holly Hill Fruit Prods., Inc., 322

U.S. 607, 618 (1944).     Moreover, words in a revenue act

generally are interpreted in their "'ordinary, everyday senses'".

Commissioner v. Soliman, 506 U.S. 168, 174 (1993) (quoting Malat

v. Riddell, 383 U.S. 569, 571 (1966) (quoting Crane v.

Commissioner, 331 U.S. 1, 6 (1947))).

     Words with a fixed legal or judicially settled meaning, on

the other hand, generally must be presumed to have been used in

that sense, unless such an interpretation will lead to absurd

results.    See United States v. Merriam, 263 U.S. 179, 187 (1923);
                                  11

Lenz v. Commissioner, 101 T.C. 260, 265 (1993).     We must rely on

the words of the statute as generally understood, for to do

otherwise would be to redraft the statute.     United States v.

Locke, supra at 93, 95-96; Lenz v. Commissioner, supra at 265

(citing United States v. American Trucking Associations, Inc.,

supra at 542-543).

     In interpreting any statue, we attempt to determine

Congress' intent in using the statutory language being construed.

United States v. American Trucking Associations, Inc., supra at

542; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 93-94

(1934); General Signal Corp. & Subs. v. Commissioner, 103 T.C.

216, 240 (1994).     Moreover, where the statute is ambiguous, we

may look to its legislative history and to the reason for its

enactment.   United States v. American Trucking Associations,

Inc., supra at 543-544; U.S. Padding Corp. v. Commissioner, 88

T.C. 177, 184 (1987), affd. 865 F.2d 750 (6th Cir. 1989).     In

addition, we may seek out any reliable evidence as to the

legislative purpose even where the statute is clear.     United

States v. American Trucking Associations, Inc., supra; Centel

Communications Co. v. Commissioner, 92 T.C. 612, 628 (1989),

affd. 920 F.2d 1335 (7th Cir. 1990).

     The relevant language in section 415(b)(5) includes "In the

case of an employee who has less than 10 years of service with

the employer".   There is no dispute that the years of service

with the business organization that established and maintained
                                12

the plan, that is, Lear or Brody Enterprises, constitute "years

of service with the employer" for purposes of section 415(b)(5).

The issue we must decide is whether the term "service with the

employer" includes service with businesses that antedate Lear and

Brody Enterprises.   While we have never been faced with this

exact issue in the context of section 415(b)(5), we find guidance

from the analysis in cases dealing with the meaning of separation

from the service as used in section 402(e).   See Burton v.

Commissioner, 99 T.C. 622 (1992); Reinhardt v. Commissioner, 85

T.C. 511 (1985); Ridenour v. United States, 3 Cl. Ct. 128 (1983).

We conclude that, for purposes of section 415(b)(5), "service

with the employer" includes service with businesses that antedate

the corporation, where formation of the corporation results in a

mere formal or technical change in the employment relationship

and continuity otherwise exists in the substance and

administration of the business operations of the previous

business and the corporation.   We turn to the parties' respective

arguments.

     Lear argues that Pallin's years as a sole proprietor and his

years with Lear constitute "years of service with the employer"

for purposes of section 415(b)(5).   Respondent concedes, and it

is clear, that Pallin's years with Lear constitute "years of

service with the employer" for purposes of section 415(b)(5).

Thus, we need only address Pallin's years as a sole proprietor.
                                 13

     On the surface, Pallin's service as a sole proprietor

followed by the formation of Lear and the continuation of the

medical practice as a corporation technically involved a change

in the employer.    Lear was the employer after the incorporation,

and Lear did not exist prior to that time.    This analysis,

however, ignores that Pallin continued performing the same

services in the corporate form that he had performed as a sole

proprietor.    There was no lapse in time between the medical

practice's transition from a sole proprietorship to a

corporation.    Pallin continued to own a majority interest in the

practice, and the practice remained in Phoenix.    Pallin's

professional duties and responsibilities did not change under the

corporate form, nor did the administration of the medical

practice under the corporate form.    The composition of the

medical practice's staff, physicians, or patients did not change

as a result of the transition to corporate form.    These factors

lead to the conclusion that the administration of the medical

practice and the substance of Pallin's business operations

remained the same despite the technical change in Pallin's

employment relationship after the formation of Lear.

Accordingly, we conclude that Pallin's years as a sole proprietor

constitute "years of service with the employer" for purpose of

section 415(b)(5).    To conclude otherwise would elevate form over

the obvious continuity in Pallin's service before and after the

formation of Lear.
                                14

     Our conclusion is buttressed by case law addressing

separation from the service in which we have looked to the

substance of the employment relationship rather than the formal

or technical change in that relationship.   In Burton v.

Commissioner, supra, Burton was a practicing physician.    Burton

incorporated his medical practice and was the sole shareholder of

the professional association.   The professional association

maintained a qualified pension plan, and Burton was a participant

in that plan.

     Burton eventually liquidated the professional association.

Immediately after the liquidation, Burton resumed his medical

practice in the form of a sole proprietorship.   The pension plan

was terminated, and its assets were distributed to the

participants.   Burton reported the distribution using the 10-year

forward averaging method which had the effect of reducing the tax

impact in the year of the distribution.   The Commissioner argued

that Burton's change in status from a sole shareholder-employee

to sole proprietor was merely a change in form and that there had

been no separation from the service within the meaning of section

402(e).   The Commissioner reasoned that since there was no

separation from the service, the 10-year forward averaging method

was not available to Burton.

     We held that Burton's change of status from that of an

employee of a professional association to that of a sole

proprietor was not a "separation from the service" within the
                                 15

meaning of section 402(e)(4)(A)(iii).   We first noted that "On

its face", the liquidation of Burton's professional association

and the continuation of his medical practice in the sole

proprietorship form satisfied the formality of separation from

the service.   Burton v. Commissioner, supra at 626.       After

reviewing the continuity between Burton's practice as a

professional association and the subsequent practice as a sole

proprietorship, we concluded that there was only a technical

change in the employment relationship that did not result in

separation from the service.    Id. at 629.   We stated:    "Our

conclusion that there was only a technical change in the

employment relationship is supported by the fact that Dr. Burton

continued performing the same services as a sole proprietor as he

had performed in the corporate form."    Id. at 629-630; see also

Reinhardt v. Commissioner, supra (change from shareholder-

employee to independent contractor does not constitute separation

from the service); Ridenour v. United States, supra (change from

employee to partner does not constitute separation from the

service); cf. Devinaspre v. Commissioner, T.C. Memo. 1985-435

(employee transfer between unrelated entities constituted

separation from the service).   The analysis and reasoning in

Burton apply with equal strength to the cases before us.

     Similar reasoning has been applied where a partnership

converted to a corporation.    See United States v. Kintner, 216

F.2d 418 (9th Cir. 1954) (former partners given credit for past
                                  16

service with the partnership for purposes of the 3-year

eligibility requirement for participation in the association's

plan); Farley Funeral Home, Inc. v. Commissioner, 62 T.C. 150

(1974) (former partners permitted to use a year of service as

partners to meet the eligibility requirements of the corporate

plan).    The situations in Kintner and Farley dealt with years of

service for participation and vesting.   Nonetheless, the

rationale of those cases regarding continuity of service supports

the conclusion we reach today.

     Moreover, the approach we adopt fulfills the congressional

objective to prevent abuse, while at the same time giving proper

weight to the years that an individual has served.   The House

report states:   "Where an individual has served for less than 10

years, the maximum benefit is reduced proportionately."     H. Rept.

93-807 at 36 (1974), 1974-3 C.B. (Supp.) 236, 271.   The

continuity in Pallin's practice is clear.   Pallin continued

performing the same services in the corporate form as he had

performed as a sole proprietor.    We see no abuse in his counting

those years as service with the employer for purposes of section

415(b).   Precluding Pallin from counting those years as service

with the employer would deny him the benefit envisioned by

Congress.   We now turn to Brody Enterprises.

     Brody Enterprises originally argued that the following years

constitute "years of service with the employer" for purposes of

section 415(b)(5):   Brody's years with Brody Enterprises, 1 year
                                 17

with Ehmann & Waldman when he did not participate in that firm's

pension plan, 5 years with Altheimer & Gray, and 4 years in which

he allegedly conducted, as a sole proprietor, a private law

practice while employed full time with the IRS.   After remand of

these cases, Brody Enterprises has abandoned the argument that

Brody's 1 year with Ehmann & Waldman constitutes "service with

the employer."   Respondent concedes that Brody's years with Brody

Enterprises constitute "years of service with the employer" for

purposes of section 415(b)(5).   Thus, Brody's 5 years with

Altheimer & Gray and 4 years in which he allegedly conducted a

private law practice remain at issue.   We address first the 4

years in which Brody allegedly conducted a private law practice

while employed with the IRS.

      Brody Enterprises argues that under section 414(c), Brody's

4 years as a sole proprietor, allegedly conducted while employed

by the IRS, must be combined with his years with Brody

Enterprises as "years of service with the employer" for purposes

of section 415(b)(5).   Brody Enterprises has failed to show that

Brody conducted a private law practice during the 4 years that

Brody was employed by the IRS.   Brody testified that in 1970 or

1971 he began a part-time law practice during the time he worked

for the IRS.   He kept no records of the hours spent on his part-

time law practice.   He worked for the IRS full time, and there is

no evidence of the extent of the alleged part-time practice.     We
                                 18

conclude that these 4 years do not constitute "years of service

with the employer" for purposes of section 415(b)(5).

     The remaining years in dispute include Brody's 5 years with

Altheimer & Gray.   We apply criteria analogous to those applied

to Lear.    We assume that Brody provided legal services for Brody

Enterprises and for Altheimer & Gray.   Brody owned Brody

Enterprises, but there is no indication that Brody had an

ownership interest in Altheimer & Gray.   Brody Enterprises has

shown no relationship between its business operations and those

of Altheimer & Gray.   We think it unlikely that the clients of

Brody Enterprises in Phoenix corresponded with the clients of

Altheimer & Gray in Chicago.   We have no indication that the

personnel at Brody Enterprises related in any way with those at

Altheimer & Gray other than, of course, Brody himself.     Indeed,

Brody Enterprises seems to contend that service with any employer

constitutes service with the employer for purposes of section

415(b)(5), but the language of the statute refutes this

contention.   The only shred of continuity between Brody

Enterprises and Altheimer & Gray was the fact that Brody worked

for both.   Accordingly, we conclude that Brody's 5 years with

Altheimer & Gray do not constitute "years of service with the

employer" for purposes of section 415(b)(5).

     Petitioners contend that section 414(a)(2) anticipates

circumstances in which service with a predecessor employer must
                                  19

be credited as years of service for the employer.    Section 414(a)

provides:

     SEC. 414. DEFINITIONS AND SPECIAL RULES.

          (a) Service for Predecessor Employer.--For
     purposes of this part--

                 (1) in any case in which the employer
            maintains a plan of a predecessor employer,
            service for such predecessor shall be treated
            as service for the employer, and

                 (2) in any case in which the employer
            maintains a plan which is not the plan
            maintained by a predecessor employer, service
            for such predecessor shall, to the extent
            provided in regulations prescribed by the
            Secretary, be treated as service for the
            employer.

No regulations have been issued pursuant to section 414(a)(2).

     The cases before us do not involve the situation in section

414(a)(1), in which the employer maintains a plan of a

predecessor employer.   Petitioners apparently do not ask us to

interpret section 414(a)(2) in their favor, and we doubt such a

request would prove beneficial.    See Carver v. Westinghouse

Hanford Co., 951 F.2d 1083, 1088 (9th Cir. 1991); Phillips v.

Amoco Oil Co., 799 F.2d 1464, 1470-1471 (11th Cir. 1986)

(interpreting the ERISA counterpart to section 414(a)(2) and

concluding that Congress intended to leave to the Secretary of

the Treasury the question of whether to require such service with

a predecessor employer be taken into account).    Petitioners

instead argue that, in the absence of regulations under section

414(a)(2), the plan sponsor or the plan administrator had the
                                20

discretion to include the disputed years as "years of service

with the employer" under their respective plans, subject only to

the limitation that the determination not be arbitrary or

capricious.   Petitioners cite Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101 (1989), United States v. Kintner, 216 F.2d

418 (9th Cir. 1954), and Farley Funeral Home, Inc. v.

Commissioner, 62 T.C. 150 (1974), in support of their argument.

In Firestone Tire, the Supreme Court established the standard of

review by which a plan administrator's decision to deny benefits

is to be reviewed in a challenge under ERISA.   That issue is not

raised in these cases.   We find Kintner and Farley relevant only

to the extent that the courts examined the substance of the

employment relationship as discussed above.   The issue before us

is the interpretation of section 415(b)(5).   Congress did not

leave that issue to the discretion of plan administrators.

     To reflect the foregoing and the concessions by the parties,

                                          Decisions will be entered

                                     under Rule 155.
