                        T.C. Memo. 1999-391



                     UNITED STATES TAX COURT



     ALLEN O. ZACHMAN AND BERNADETTE ZACHMAN, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13252-91.                 Filed December 1, 1999.



     John R. Koch, for petitioners.

     Tracy A. Martinez, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     THORNTON, Judge:   Respondent determined the following

deficiencies, additions to tax, and penalties with respect to

petitioners’ Federal income tax liabilities:
                                  - 2 -


                                  Additions to Tax and Penalties
                                  Sec.          Sec.         Sec.
Year          Deficiency     6653(a)(1)(A) 6653(a)(1)(B)* 6662(a)**

1987            $2,279            $114         50% of the       -–
                                               interest due
                                               on $2,279
1988             2,912             146             -–            -–
1989             7,100             -–              -–          $1,165

           *   Sec. 6653(a)(1)(B) was repealed for 1988.
           ** Sec. 6662(a) was enacted in 1989, generally
       effective for returns the due date for which is after
       Dec. 31, 1989.


       The issues for decision are:

       1.    Whether Oak Hill Co. (Oak Hill), a putative business

trust established by petitioners, should be disregarded for

Federal income tax purposes because it lacks economic substance.

We hold that it should.

       2.    Whether petitioners are liable for additions to tax for

negligence pursuant to section 6653(a) for taxable years 1987 and

1988 and an accuracy-related penalty pursuant to section 6662(a)

for taxable year 1989.1     We hold that they are.

                            FINDINGS OF FACT

       The parties have stipulated some of the facts, which are so

found.      The stipulated facts and associated exhibits are




       1
       All section references are to the Internal Revenue Code in
effect for the years in issue. All Rule references are to the
Tax Court Rules of Practice and Procedure.
                               - 3 -


incorporated by this reference.   Petitioners resided in Rogers,

Minnesota, when they filed their petition.

     For more than 46 years, petitioners have owned and operated

a 235-acre dairy farm.   Petitioner husband also sells parts and

silo loaders.

     Prior to 1983, petitioners’ farm assets, personal property,

and real property were held in various trusts, including North

Curve and Orange Run trusts, promoted by Lowell Anderson.2   In

1983, upon the advice and recommendation of James Noske and Norb

Stelton, whom they had just met in a doctor’s office, petitioners

decided to transfer their assets into new “business trusts.”      On

November 9, 1983, petitioners executed a bill of sale whereby for

stated consideration of “One dollar and other good and valuable

consideration”, they purported to transfer to Oak Hill their farm

equipment and livestock.   On the same day, in their capacities as

trustees for the North Curve and Orange Run trusts, petitioners

purportedly conveyed and quitclaimed their interests in the farm

real estate to Pleasant Acres Co. (Pleasant Acres).



     2
       On Feb. 24, 1983, Lowell Anderson was indicted by a
Federal grand jury in Wyoming for conspiring to defraud the
United States by selling common-law trusts which were used to
evade Federal income taxes. See United States v. Tranakos, 911
F.2d 1422, 1424 (10th Cir. 1990). Petitioners were issued a
subpoena to testify before the grand jury regarding matters
involving Lowell Anderson, but they were ultimately excused from
testifying. Lowell Anderson died while the criminal proceedings
were pending. See id.
                              - 4 -


Simultaneously, petitioners purportedly conveyed to Pleasant

Acres three life insurance policies and an extensive assortment

of personal property, including furniture, china, lamps, home

appliances, and an encyclopedia.

     Oak Hill and Pleasant Acres both purport to be business

trusts formed pursuant to Minnesota law.    The named trustees of

each of these purported trusts are Parnell, Inc. (Parnell) and

Armageddon, Inc. (Armageddon), nonprofit corporations organized

under the laws of South Dakota.    These corporations are also the

named trustees for numerous other business trusts.

     The Declaration of Trust of Oak Hill (Declaration of Trust),

dated April 25, 1983, recites that it is made between Parnell and

Armageddon, “herein referred to as Trustees, for the purpose of

enabling the Trustees to hold and manage the trust estate and to

carry on business as hereinafter provided.”    The Declaration of

Trust further provides in pertinent part:

                      ARTICLE III.    SHARES

          SECTION 1. The beneficial interest in this trust shall
     be divided into shares without par value. Upon unanimous
     approval of the Board of Trustees, shares may be sold or
     exchanged for such consideration, and on such terms, as the
     Trustees deem proper. All shares shall be evidenced by
     trust certificates of which [sic] shall be signed by each of
     the Trustees.

          SECTION 2. The certificates shall entitle owners
     thereof to participate proportionately in all dividends and
     other distributions of income or principal as the Trustees
     may, from time to time, in their absolute discretion,
     declare and pay out; provided that, upon the termination of
                         - 5 -


the trust, the Trustees shall distribute all of the property
and accrued income to the certificate holders of record in
proportion that the number of shares they own bears to the
total number of shares issued and outstanding.

     SECTION 3. Any Trustee hereunder may acquire, hold and
dispose of shares in this Trust to the same extent and in
the same way as if he were not a Trustee and without
affecting in any way his status or power as such.

     SECTION 4. No shares shall be issued in addition to
those originally specified herein except as replacements for
other certificate holders as authorized by this Declaration.
The total number of shares outstanding shall not exceed 100
(one hundred) in number.

     SECTION 5. Transfers of shares shall be made only on
the books of the business trust and the old certificate
properly endorsed shall be surrendered and canceled before a
new certificate is issued, provided that, no transfer shall
be effective until approved by unanimous vote of the Board
of Trustees.

     *      *       *       *       *       *       *

     SECTION 7.    The rights of trust certificate holders
and other persons becoming entitled to shares of the trust
shall be subject to all terms and conditions of this
Declaration of Trust. The shares shall not be personal
property, and the ownership thereof shall not give any
person any legal or equitable title in or to the trust
property or any part thereof, but shall only entitle the
owners of shares to their proportionate shares of dividends
and distributions as herein provided. No shareholders shall
have any rights to manage or control the property, affairs,
or business of the trust, or any power to control Trustees
in these respects.    No shareholder shall have any right to
a partition of the trust property or to an accounting during
the continuance of the trust. No part of the trust property
or the income therefrom shall be liable for the debts of any
trust certificate holder and no certificate holder shall
have any power to sell, assign, transfer, encumber, or in
any manner to anticipate or dispose of his shares or the
income produced thereby, prior to the actual distribution in
fact, by the Trustee to said certificate holder.
                               - 6 -


          SECTION 8. The death, insolvency or incapacity of any
     trust certificate holder shall not operate to terminate or
     dissolve the trust or affect its continuity ***. If any
     certificate holder hereunder dies, becomes insolvent or is
     placed under any legal incapacity before the termination of
     this trust, his shares shall become null and void and shall
     immediately revert to the Board of Trustees, who shall
     thereupon name a replacement beneficiary or beneficiaries
     and issue a new certificate or certificates as provided in
     this Declaration.

                 ARTICLE IV.   BOARD OF TRUSTEES

          SECTION 1. The business and property of the business
     trust shall be managed by Board of Trustees, who shall be
     the persons named in the Declaration of Trust, who shall
     serve until their successors are duly qualified. In the
     event of the death, incapacity, resignation or retirement of
     any Trustee, a successor Trustee shall be appointed by the
     remaining Trustee or Trustees.

          *       *        *       *       *       *       *

          SECTION 3. The Trustees shall hold, in the trust name,
     legal and equitable title to all property, real and
     personal, and shall have absolute and exclusive power and
     control over the management and conduct of the business of
     the trust free from any right of control of any of the
     certificate holders. The Trustees may hold, manage and
     dispose of the property and business of the trust in the
     same manner as if they were absolute proprietors thereof,
     subject only to the specific limitations herein contained.
     The Trustees shall have the power, without limitation, to
     purchase or otherwise acquire property, and to sell,
     exchange, lease, mortgage, pledge or in any manner dispose,
     encumber, improve or deal with the property of the trust,
     real or personal, or any part thereof, or any interest
     therein, on such terms and for such consideration as they
     deem proper. * * *

     The Declaration of Trust, as well as various minutes for the

board meetings of Oak Hill’s trustees, bears the signatures of

Cheryl A. Foshaug, president of Armageddon, and Marti Inman,

president of Parnell.   Neither Foshaug nor Inman has ever met
                              - 7 -


petitioners or heard of Oak Hill.   Neither ever managed Oak Hill.

They each signed various papers, including blank or incomplete

pages, at the request of James or Joan Noske.   Foshaug often

neither read nor understood the pieces of paper she signed.     As

president of Parnell, Inman took no action other than as directed

by James or Joan Noske.3

     The minutes for the Oak Hill trustees’ meeting dated

September 14, 1983, signed by Foshaug and Inman, indicate that

the trustees appointed Daniel Strohmeier as manager of Oak Hill,

with authority to oversee the business operations of the trust

and to issue checks to pay general operating expenses.4   If

Strohmeier ever conducted business related to Oak Hill, it was at

the direction and under the control of James or Joan Noske.

     Sometime in 1987 or 1988, John B. Ellering became president

of Armageddon and Parnell, and replaced Strohmeier as


     3
       On June 14, 1985, the U.S. District Court for the District
of Minnesota entered a final judgment of permanent injunction as
to Foshaug, Inman, Armageddon, and Parnell, enjoining them under
secs. 7408 and 7402 from organizing or assisting in the
organization of an abusive tax shelter plan or arrangement
involving business trusts.

     4
       Another case involving Noske trusts, Scherping v.
Commissioner, T.C. Memo. 1989-678, includes as a finding of fact
that in June 1983 James and Joan Noske took Strohmeier from an
alcoholic treatment center, made him a figurehead president of an
entity to which the taxpayers had transferred their dairy farm
assets, and placed him on the taxpayers’ family farm to live and
work for the last half of 1983, doing farm chores at the
taxpayers’ direction.
                                - 8 -


manager of Oak Hill.   Ellering owned a bowling alley; he knew

nothing about dairy farming.5

     Petitioners had no official titles or offices in Oak Hill,

Armageddon, or Parnell.   Initially, petitioners received all 100

trust shares in Oak Hill and Pleasant Acres.     On December 21,

1983, petitioners surrendered their original 100 shares in Oak

Hill, each receiving 20 new shares.     The remaining 60 shares

purportedly were transferred to BBCA, Inc. (BBCA), an

organization purporting to be a church.6    The president of BBCA

was Joan Noske.

     During the years at issue, petitioners’ day-to-day farming

operation, including the parts business, was run by petitioners

and their sons Gerard and Ryan, who received no wages for their

labors.   All the gross receipts from petitioners’ farming


     5
       In September 1995, Ellering was convicted by a jury in the
U.S. District Court for the District of Minnesota of conspiracy
to defraud the United States by impeding the Internal Revenue
Service. His conviction was based on his participation with
James and Joan Noske and Imelda Spaeth in a scheme to assist
clients of the Noskes, who sought to reduce or avoid Federal
income taxes, form business trusts that named Armageddon and
Parnell as trustees.

     After Ellering’s criminal conviction, petitioners’ son
Gerard became president of Armageddon and Parnell.

     6
       The minutes of a special meeting of the Oak Hill trustees,
dated Dec. 21, 1983, and signed by Inman and Foshaug, recite that
these transfers were made upon application of the petitioners and
were unanimously approved by the trustees.
                                - 9 -


operation, including the parts business, were sent to Joan Noske

at a post office box in Cold Springs, Minnesota.     Some of these

amounts were received at this post office box directly from the

payors.   In other instances, payors sent checks directly to

petitioners, who would forward them to the Cold Springs post

office box.   When petitioners received bills from companies they

bought parts from, these too were generally forwarded to the Cold

Springs post office box.

     Joan Noske generally made provision out of “Oak Hill” funds

for paying farm expenses, parts inventory purchases, utility and

other billings, and real estate taxes, as well as for paying

certain of petitioners’ living expenses, including expenses for

insurance, reroofing petitioners’ personal residence, hospital

bills, a newspaper subscription, and property taxes on

petitioners’ residence.    Oak Hill also paid 40 percent of

petitioners’ utilities.

     During the years at issue, Joan Noske did all the

bookkeeping for Oak Hill.    She prepared the Federal income tax

returns for Oak Hill and at least 20 other trusts that name

Armageddon and Parnell as trustees.     She also prepared

petitioners’ income tax returns for the years in issue.     On a

monthly or bimonthly basis, petitioners received ledgers from

Joan Noske which accounted for funds purportedly received and

disbursed by Oak Hill during the years at issue.     The
                               - 10 -


disbursements included $125 per month to Joan Noske for her

bookkeeping services.

     On November 16, 1985, the U.S. District Court for the

District of Minnesota entered a Final Judgment of Permanent

Injunction as to James and Joan Noske, finding that they had

engaged in conduct subject to penalty under section 6700 and

enjoining them from organizing, assisting, selling, or otherwise

promoting business trusts as abusive tax shelters.   As part of

the judgment, the Noskes were ordered to supply respondent’s

District Director with the names and addresses of all purchasers

of the 186 business trusts on file with the Minnesota Secretary

of State which list Armageddon and Parnell as corporate trustees.

Subsequently, the Noskes identified Oak Hill and Pleasant Acres

as being among the business trusts involved in the injunction

action.

     In September 1995, Joan and James Noske were convicted of,

among other things, conspiracy to defraud the United States by

impeding the Internal Revenue Service, and conspiracy to evade

Federal income taxes.   The convictions were based on the Noskes’

participation in a scheme to assist their clients in reducing or

avoiding Federal income taxes by forming business trusts which

named Armageddon and Parnell as trustees.   It was further

determined that the Noskes participated in a scheme whereby their

clients would transfer all of their income-producing property to
                               - 11 -


the business trusts and then issue 60 percent of their trust

shares to BBCA, thus effectively evading the assessment and

payment of 60 percent of their clients’ Federal income tax

liability.

     Oak Hill filed Federal income tax returns for 1987 through

1989 reporting Schedule F income from petitioners’ farming

operation, interest income, Schedule C income from petitioners’

parts business, and capital gains.   In taxable year 1987, Oak

Hill reported a net loss.   In taxable years 1988 and 1989, Oak

Hill reported that 40 percent of its net income was distributed

to petitioners.7   The trust itself paid no taxes.   Petitioners

reported only their distributive share of Oak Hill’s net income

on their joint Federal income tax returns.

     Respondent determined that petitioners are taxable on the

gross income reported by Oak Hill because the creation of Oak

Hill and the subsequent transfer of petitioners’ assets thereto

was a sham transaction lacking in economic substance, because

petitioners have improperly attempted to assign their income to




     7
       For taxable year 1988, Oak Hill claimed an income
distribution deduction for 100 percent of its reported
distributable net income, reporting that 40 percent was
distributed to petitioners, but failing to report the recipient
of the remaining 60 percent. For taxable year 1989, Oak Hill
reported that its reported distributable net income was
distributed 40 percent to petitioners and 60 percent to BBCA.
                                   - 12 -


Oak Hill, and because petitioners are taxable on the trust income

under the grantor trust rules in sections 671 through 678.

                                  OPINION

     If the creation of a trust has no real economic effect and

alters no cognizable economic relationships, it will be

disregarded for Federal income tax purposes; our guidepost is the

economic substance of the transaction.      See Zmuda v.

Commissioner, 79 T.C. 714, 719 (1982), affd. 731 F.2d 1417 (9th

Cir. 1984); Markosian v. Commissioner, 73 T.C. 1235, 1241 (1980).

This rule applies even if the trust is recognized pursuant to

State law as a business trust or other form of jural entity.      See

Zmuda v. Commissioner, supra.8

     Whether a trust lacks economic substance is a question of

fact.       See Paulson v. Commissioner, 992 F.2d 789, 790 (8th Cir.

1993), affg. per curiam T.C. Memo. 1991-508.      Relevant factors

include whether the taxpayer’s relationship as grantor to the

property differed materially before and after the trust’s



        8
       This is not the first occasion we have had to examine
trust arrangements devised and promoted by the Noskes. On each
occasion, we determined that they were sham entities used by
taxpayers to avoid income tax. See, e.g., Scherping v.
Commissioner, T.C. Memo. 1998-288; Paulson v. Commissioner, T.C.
Memo. 1991-643, affd. without published opinion 994 F.2d 843 (8th
Cir. 1993); Paulson v. Commissioner, T.C. Memo. 1991-508, affd.
992 F.2d 789 (8th Cir. 1993); Scherping v. Commissioner, T.C.
Memo. 1991-384; Chase v. Commissioner, T.C. Memo. 1990-615; Chase
v. Commissioner, T.C. Memo. 1990-164, affd. 926 F.2d 737 (8th
Cir. 1991); Scherping v. Commissioner, T.C. Memo. 1989-678.
                                - 13 -


formation, whether the trust had an independent trustee, whether

an economic interest passed to other beneficiaries of the trust,

and whether the taxpayer felt bound by any restrictions imposed

by the trust or by the law of trusts.    See Markosian v.

Commissioner, supra at 1243-1245; Muhich v. Commissioner, T.C.

Memo. 1999-192.    The burden of proof is on petitioners.   See Rule

142.

       The evidence clearly establishes that Oak Hill lacked

economic substance and was merely a paper entity created for the

primary purpose of reducing petitioners’ Federal income tax.

Petitioners’ relationship to their property did not differ

materially before and after the creation of Oak Hill.    Although

petitioners purported to transfer all their income-producing

personal property to Oak Hill, in reality they retained dominion

and control over it.    They continued to operate the farm and

parts businesses just as they always had, making all the

management decisions.    Together with their sons Gerard and Ryan,

petitioners provided all the income-producing labor and made all

the management decisions.    Petitioner wife testified that, except

for bookkeeping, “Everything is run the same” on their farm as it

was before the creation of Oak Hill.     Petitioner wife testified
                                 - 14 -


further that she did not really view the trust as being separate

from herself.9

     The record does not establish that Parnell and Armageddon

were independent trustees or that they performed any significant

duties or exercised any significant control or power over the

farm or parts businesses.   Contrary to the terms of Article IV,

Section 3, of the Declaration of Trust, Parnell and Armageddon

did not have “absolute and exclusive power and control over the

management and conduct of the business”.   Petitioners concede

that Inman and Foshaug were strangers to Oak Hill and were

nothing more than figurehead presidents of the corporate

trustees, merely signing documents, often blank or incomplete, at

the instigation of the Noskes.    The use of strangers as signers

of organizational documents and the absence of any meaningful

role by nominal trustees in the operation of the trust are

evidence that the purported trust lacks economic substance.   See

Para Techs. Trust v. Commissioner, T.C. Memo. 1994-366, affd.

without published opinion sub nom. Anderson v. Commissioner, 106

F.3d 406 (9th Cir. 1997), and cases cited therein.



     9
       Petitioners argue that petitioner husband curtailed his
involvement in the farm and parts businesses after 1985 because
of health problems. Any such curtailment of petitioner husband’s
activities, however, cannot credibly be attributed to the
existence of Oak Hill, allegedly created 2 years previously. In
any event, petitioner husband continued to serve a managerial and
supervisory role in the farm’s operation even after 1985.
                              - 15 -


     Petitioners also concede that Strohmeier served no

meaningful function as “manager” of Oak Hill.    Similarly, there

is no evidence that Strohmeier’s successor, Ellering, served any

meaningful function as manager of Oak Hill.   In fact, there is no

evidence that Oak Hill ever conducted any business at all.10

     Upon the alleged creation of Oak Hill, no economic interest

passed to any beneficiary other than petitioners.   Nor does the

record establish that the subsequent purported transfer to BBCA

of 60 percent of petitioners’ shares in Oak Hill was a valid

conveyance of petitioners’ economic interests.   To the contrary,

at trial petitioners vigorously asserted that they never

knowingly authorized any such transfer of their shares to BBCA.

     Petitioners assert that they had motives apart from tax-

avoidance for establishing Oak Hill, but any such motives are not

credibly established on this record.   For example, petitioners

argue that Oak Hill was created for estate-planning purposes “to



     10
       On brief, petitioners seek to attribute to Parnell and
Armageddon the activities of the Noskes, arguing that Parnell and
Armageddon controlled Oak Hill’s “checkbook” through the agency
of the Noskes. Petitioners have not established, however, that
the Noskes were in fact the agents of Parnell or Armageddon.
There is no mention of the Noskes in the Declaration of Trust.
There is no evidence that the Noskes were authorized to or
actually did assume the fiduciary duties allegedly imposed on the
corporate trustees under the purported trust documents. Rather,
the totality of the evidence strongly suggests that the Noskes
provided petitioners with bookkeeping services, for which they
were compensated, and bad advice as part of a conspiracy to
defraud the United States, for which they were imprisoned.
                                - 16 -


keep the farm together in the family.”    It is unclear, however,

how the establishment of Oak Hill would accomplish any such

objective.   Under Article III, Section 8 of the Declaration of

Trust, if any trust certificate holder dies before termination of

the trust, his shares become “null and void and shall immediately

revert to the Board of Trustees, who shall thereupon name a

replacement beneficiary or beneficiaries”.    Accordingly, the

creation of Oak Hill would have provided petitioners no assurance

that the farm would remain in their family.    To the contrary,

under the terms of the Declaration of Trust, absolute power over

the disposition of the farm property, either during their lives

or upon the death of either petitioner, would have resided with

Parnell and Armageddon.   In any event, the expectancy of an

estate-planning advantage does not establish entitlement to an

income tax advantage.   See Prindle Intl. Marketing, UBO v.

Commissioner, T.C. Memo. 1998-164.

     Similarly, petitioners argue that the establishment of Oak

Hill was motivated by a desire to achieve limited liability with

respect to the parts business, in order to protect the farm

property.    We conclude, however, that any such objective was

peripheral to petitioners’ primary objective of deflecting their

taxable income.    Petitioners’ personal farm property was

commingled with the parts business property in Oak Hill, and so

was not insulated from liability arising from the parts business.
                               - 17 -


     Contending that they received only a share of the Oak Hill

income, petitioners argue that they should be taxed only on the

share they actually received.11   It is axiomatic, however, that

taxation is concerned with “actual command over the property

taxed-–the actual benefit for which the tax is paid” and that the

transfer of formal legal title will not operate to “shift the

incidence of taxation attributable to ownership of property where

the transferor continues to retain significant control over the

property transferred.”   Frank Lyon Co. v. United States, 435 U.S.

561, 573 (1978); see Sundance Ranches, Inc. v. Commissioner, T.C.

Memo. 1988-535, affd. without published opinion (9th Cir. 1990).

Petitioners clearly retained sufficient power and control over

their farm and parts businesses to be properly treated as the

recipients of the income for tax purposes.   Cf. Commissioner v.

Sunnen, 333 U.S. 591, 604 (1948); Hutcherson v. Commissioner,

T.C. Memo. 1984-165.

     In light of our holdings on these issues, we need not reach

respondent’s alternative argument that petitioners should be

taxed on the Oak Hill income under the grantor trust rules.


     11
       The record does not establish what ultimately happened to
the 60 percent of Oak Hill income allegedly distributed to BBCA.
Cf. United States v. Klaphake, 64 F.3d 435 (8th Cir. 1995) (in a
case involving the transfer of a family farm business to a Noske
trust of which BBCA was a beneficiary, the taxpayers received
cash back from BBCA on a regular basis).
                                 - 18 -


Additions to Tax and Penalties

     Respondent determined that petitioners are liable for

additions to tax under section 6653(a) for taxable years 1987 and

1988, and an accuracy-related penalty under section 6662 for

taxable year 1989.    Section 6653(a)(1)(A) imposes an addition to

tax equal to 5 percent of the underpayment if any part of the

underpayment is attributable to negligence.       Section

6653(a)(1)(B) imposes an addition to tax equal to 50 percent of

the interest payable on the portion of the underpayment

attributable to negligence.     Section 6662(a) imposes a 20-percent

penalty on any portion of an underpayment that is attributable to

negligence.     Negligence is the lack of due care or failure to do

what a reasonable and ordinarily prudent person would do under

the same circumstances.    See Neely v. Commissioner, 85 T.C. 934

(1985).   Petitioners have the burden of proving that respondent’s

determinations are incorrect.    See Rule 142(a); Bixby v.

Commissioner, 58 T.C. 757, 791-792 (1972).

     Petitioners argue only that because there is no underpayment

of tax, there is no amount upon which to compute additions to tax

or penalties.    We have sustained respondent’s determination that

petitioners understated their Federal income tax liability for

taxable years 1987, 1988, and 1989.       Accordingly, petitioners’

argument must fail.
                                 - 19 -


      Petitioners have not established that they used reasonable

care in ascertaining their income tax liability for these years.

They have not shown that they reasonably relied on a competent

professional adviser independent of those persons who were

involved in marketing these abusive trusts.    We sustain

respondent’s determinations on this issue.

     To reflect the foregoing,


                                     Decision will be entered

                                 for respondent.
