David Isaac Plotinsky, Petitioner

DAVID ISAAC PLOTINSKY, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket 'No .' 4094-07 .

David Isaac Plo insky, pro se .

Kelly R . Morrison-Lee, for respondent .

MEMORANDUM - FINDINGS OF-FACT AND "OPINION CHIECHI, Judge : Respondent determined a deficiency of $7 6 in petitioner's Fede al income tax (tax) for his taxable year 2004 .

The issue for decision is whether petitioner is entitled fo r his taxable year 200~ .to exclude from gross income under secti o SERVED OCT 2 9 2008 102(a)' $3,043 of a certain loan of petitioner that the credito r discharged . We hold that he is not .

FINDINGS OF FACT All of the facts in this case, which the parties submitted under Rule 122, have been stipulated by the parties and are so found .

Petitioner resided in Washington, D .C ., at the time he filed the petition in this case .

During 1993 through 1997, petitioner financed a portion of his college education through a Federal Than with United Student Aid Funds, Inc, . (petitioner's college loan) . During 1997 through 2000, petitioner financed a portion of his-law school educatio n with several Federal loans with Access Group (petitioner's law school loans) . (We) shall refer collectively to petitioner's college loan and petitioner's law school loans as petitioner's Federal student loans .

) As part of its business, Key Bank USA/American Education Services (AES-), ;, offered to consolidate student loans like peti- tioner's Federal student loans . As an incentive designed to induce individuals with student loans to consolidate those loans with AES, AES offered an on-time payment incentive program (AES's incentive program) . Pursuant to AES's incentive program, if a n `'All section references are to the Internal Revenue Code in effect for the year at issue . All Rule references are to the Tax Court Rules of Practice and Procedure .

individual were to c nsolidate the . individual's student loans~ b taking out a loan f r AES (AES loan) .and the'individua1 wer e make 3 6 consecutiv e -time monthly payments on the AES loan, AE S would discharge a p o tion of that loan .

Petitioner wa s ware of AES's incentive program when i n August 2001, after g aduating from law-school, he consolidate d petitioner's Federa l student loans through AES (petitioner' s consolidated-studen t loan) . The promissory note and the repay- ment schedule that p titioner signed and,that evidenced peti- tioner's consolidat e student loan did not address any incentiv program with respec t to the repayment of that'loan .

During 2004, t h year at issue, petitioner's employer, th e United States Hous e Representatives,'made $6,288 of payment s on petitioner's beha f on petitioner's consolidated student loa During that-year`, p e itioner did not make any additional payme n s on that loan .

In 2004, pursuan t to AES's'incentive program and as a res u of 36 consecutive on- time payments : having been made on:peti- tioner's consolidat e student loan, AES discharged $3,043 of th4 l loan .

AES issued Form 1099-C, Cancellation of Debt (2004 For m 1099-C) , -to petitioner for his taxable .year 2004 .

That form showed'$3 ;0,43 .28 as t e amount of' .debt canceled . The instruc- tions to the 2004 For 1099-C that AES sent to petitioner stated in pertinent part : "Generally, if you are an individual, you must .include the canceled amount on the `Other Income,' line of Form 1040 . * *11* However, some canceled debts are not includible in your income . " Petitioner timely filed Form 1040, U .S . Individual Income Tax Return, for his taxable year 2004 (petitioner's 2004 return) .

In that returns, petitioner reported gross income of $76,917 that did not include the $3,043 .28 of petitioner's consolidated student loan that AES discharged .

,Petitioner attached to.petitioner's 2004 return a document (petitioner's attachment to petitioner's 2004 return) that stated in pertinent part :

I received a Form 1099-C from AES Graduate& Professional Loan Services ("AES"), which stated a cancellation'of debt in the amount of $3043 .28 . I am not reporting this amount as income because it is my reading of Internal Revenue Service Pub . 525, at 17-18, that this cancellation constitutes a gift rather than income .

~ AES ;,is the lender with which I consolidated my law school loans approximately three years ago . As an incentive to select AES as my lender, AES offered a reduction in the total amount of my loans, and it is this offer that forms the entire basis for the debt cancellation of $3043 .28 . The offer was contingent upon my making 36 consecutive,on-time monthly payments, and now that this has been achieved the debt cancella- tion is locked in . , I .

I On November 13, 2006, respondent issued a'notice of defi- ciency to petitioner for his taxable year 2004 . In that notice, .

respondent determine to include in gross -income :. the $3,0432 .0 petitioner'"s consoli ated student 'loan that AESdischarged .

OPINION

Petitioner bear the burden of proving that the determina- .tion"in the notice .erroneous .3 See Rule 142(a) ; Welc h Helverina , :.290 U .S . °11,(cid:127)115 (1933) That this case, was, submi t ted fully stipulated does not change that burden -. or the effect- a failure of proof . See Rule 122,(b) ; Borchers v . Commissioner ,

It is petitioner's position that he is : .entitled for hi s taxable year 2004 to exclude from gross income under sectio n 102(a) .,$3, .043-of petitioner's -consolidatedstudent loan ; .that A E discharged in that yar ."" Section 61(a) d mean all income from whateve r source, derived ., Generally, inco m from the discharge o f indebtednessis ..includible.in gross inco m Sec . 61 (a) (12) Ther e are, .howev.er, certain exceptions . to tha t general rule . One o f those exceptions on which petitioner relief s is found in section 1 02(a) . As pertinent here, section 102(a ) 2We presume that dollar the $3,043 .28 ience, when referring student " loan that AES round that amount dow respondent rounded down to the neares t hown in the 2004"Form 1099-C . For conven to the amount of petitioner's consolidated discharged in 2004, we'shall hereinafte r to the nearest dollar .

3Petitioner does not claim that,,the burden of proof shifts to respondent under sec . .7.491(a) 6 - excludes from gross income the value of property acquired by gift . If the discharge of a loan constitutes a gift from the creditor to the debtor, the debtor has no income as a result of thatidischarge . See id .

In support of petitioner's position under section 102(a), petitioner relies on Helvering v . Am . Dental Co . , 318 U .S . 322 (1943), and argues that, .-because AES received nothing from petitioner in 'return for its discharge of $3,043 of petitioner's consolidated'student loan, the amount discharged was a gift,from AES to him . According to petitioner , The cancellation of a portion of Petitioner's debt by AES falls squarely under the Supreme Court's definition of a gift as "a release of something to the debtor for nothing ." [ Helvering v . Am . Dental Co . , 318 U .S . 322, 331 (1943) .] * * * regardless of the AES "on time incentive" program, Petitioner was already under an independent obligation under the terms of his loan agreement with AES to make continual timely payments . Because the "on time incentive" merely cancelled a portion of Petitioner's debt for doing something that he was already contractually obligated to do anyway, the cancellation of debt was "a release of something to the debtor for nothing" and therefore can only,be .construed as a gift . * * * Petitioner's reliance on Helvering v . Am . Dental Co .

, supra , to support his position under section 102(a) is misplaced . In contrast to the finding in that case that there wasj,-"a release of something to the debtor [the taxpayer] for nothing," id . at 331, we find on the record before us that petitioner has .failed to carry his burden of establishing that AES's discharge of $3,04 3 of petitioner's consolidated student loan pursuant to AES's i. .

incentive .program,wa "a release of something-to the . debto r [petitioner] for not ing" .

Id .

Indeed, we have found on tha t record that AES offe ed AES'-s incentive program in order t o induce individuals 1 ke petitioner to consolidate their studen t loans-with AES .

,ave also found on the record before us tha .

in 2004, pursuant t o AES's incentive program and as,a result o f 36 consecutive on-ti e payments having been made on petitioner' consolidated studen t loan, AES discharged $3,043 of that loan .

As petitioner acknow edged in petitioner's attachment to peti- tioner'°s 2004 return ; (cid:127)"As'an incentive to select AES as my lender, AES .offered reduction in the total amount of my loans and it `is this-of fer that forms the entire basis for the debt cancellation `of $304 .28 ." On. the record before us, we find the t petitioner-has faile to carry his burden of establishing tha t AES received nothing from petitioner in return for its discharg e of $3,043 of petitioner' s consolidated student loan' Even if we had f and that AES received nothing in return fo r its discharge of $3,0 3 of petitioner's consolidated studen t loan, petitioner's re lance on Helvering v ." Am . Dental Co .

, supra , nonetheless'wo ld'be misplaced . In that case, the ta x payer owed delinquen t rent to his lessor and delinquent interes t to his creditors .

I 323-324 . The-taxpayer'-s lessor dis- charged a portion of hat delinquent rent, and the taxpayer' s creditors discharged 11 of that delinquent interest .

Id .

The 8 - taxpayer argued that the discharged rent and the discharged interest constituted gifts under section 22(b)(3) of ;the Revenue Act of 1936, a predecessor of section 102(a) .4 Id . at 324 . The Supreme Court of the United States'(Supreme Court) held that the taxpayer's discharged rent and discharged interest constituted gifts under section 22(b)(3) of the Revenue Act of 1936 .

Id . at 331 ., In so holding, the Supreme Court explained that the "for- giveness was gratuitous, a release of something to the debtor for nothing, and sufficient to make the cancellation here gifts within the statute [section 22(b)(3) of ,the Revenue Act o f 19361 Id .

However, in Commissioner v . Jacobson , 336 U .S . 28, 50-51 (1949), the Supreme Court clarified what it said in Helvering v .

Am . ;Den-tal Co .

, supra , and the meaning of the term "gift" in section 22(b)(3) of the Revenue Act of 1938 and section 22(b)(3) of the 1939 Code .5 In Jacobson , the taxpayer acquired a 99-yea r 4Sec . 22(b)(3) of the Revenue Act of 1936, ch . 690, 49 Stat .

1657, was reenacted in the Revenue Act of 1938, ch . 289, . sec . 22(b)(3), 52 (cid:127)'Stat . 458, and was codified as sec . 22(b)(3) of the Internal Revenue Code of 1939 (1939 Code), ch . 2, 53 .Stat . 10 . The Revenue Act of 1942, ch . 619, sec . 111(a), 56 Stat . 809, made changes not pertinent here to sec . 22(b)(3) of the 1939 Code . Sec . 22(b)(3) of the 1939 Code, as amended by the Revenue Act of 1942, .was reenacted with . changes not pertinent here as sec . 102'(a) of the Internal Revenue Code of 1954 (1954 Code), ch . 736, 68A Stat . 28 . Sec . 102(a) of the 1954 Code was reenacted with no changes as sec . 102(a) of the Internal Revenue Code of 1986 . Tax Reform Act of 1986, Pub . L . 99-514, sec . 2, 100 Stat . 2095 .

, 5See supra note 4 .

leasehold interest° i certain property and the improvements on that property ., Id .

t 32 . Several years later the taxpaye r borrowed money fro m bank .

Id . - As security for that loan, th O taxpayer executed 2 0 bonds secured by-a trust deed on hi s leasehold interest a d the improvements thereon . -, Id .

Certai n persons (bondholders), purchased those bonds .

Id . at 33 . Ther e after,'the value 'of the taxpayer's leasehold interest and th e improvements thereon sharply declined, and'the taxpayer, who wa solvent although in ifficult financial circumstances, repur- chased at less tha n ace value-his bonds' "from the bondholders .

Id . at 34-35 The i sue presented in Jacobson was whether th e difference betwee n face value of each of the bonds -over th e amount that the taxp a erpaid to-each bondholder was a gift t o the taxpayer by eac h ondholder under.-section 22(b)(3) of the Revenue Act of 1938' f r one of the years involved in Jacobson . a under section 2 .2(b) ( 3 I- W of the 1939- Code for the remaining two years involved in Jac bson :

.

.

Id . at '47-48 . The 'Supreme Cour t held that no gifts oc urred-under that section .

Id .- at 52 .

so holding, the Supre under section 22 (b) (3 of the Revenue Act of 1938 and sectio n 22(b)(3) of the 193 9 ode unless the facts established that the transferor intended t make a gift .

Id . at 51 . According to t h Supreme Court :

There was no sug that any bondhol estion in the evidence or the findings er was acting from any interest other ,than his own . , Each transaction was a sale . The seller sought to get as high a price as he could for the bond and the buyer sought to pay as low a price as he could for the same bond . If the transaction had been'com- pletely on the open market through a stock exchange, the conduct and intent of each party could have been the same and therewould have been little, if any, basis for any claim that the respondent's gain was not taxable income . The mere fact that the seller knew that he was selling to the maker of the bond as"hi s .only available market did not change the sale into a gift . In the absence of proof to the contrary, the intent of ; the seller may be assumed to have been to get all he could for his entire claim . Although the sales price was less than the face of the bond and less tha n .the original issuing price of the bond, there was nothing to indicate that the seller was not getting all that he could for all that he had . There is nothing in the evidence or findings to indicate that he intended to transfer or did transfer something' for nothing . * * * The seller did not first release the maker from a part of the maker's obligation and, having made the maker a gift of that release, then sell him the balance of the bond or vice versa . If the seller actually had intended to give the maker some gift[,] the natural . reflection of that gift would have been a credit on the face of the bond or at least some record or testimony . evidencing the release . * * * It is quite possible that a bondholder . might make a gift of an entire bond to anyone, including the maker of it . The facts and findings ;, in this case do not establish any such intent of the seller to make a gift in contradiction of the natural implications arising from the sales and assign- ments which he made . It is conceivable, although hardly likely, that a bondholder, in the ordinary course of business and without any express release of his debtor, might have sold part of his claims on the bonds he held at the full face value of those parts and then have made,a gift of the rest of his claims .'on those bonds to the same debtor "for nothing ." It is that kind of extraordinary transaction that the respon- dent asks us, as a matter of law, to read into the simple sales which actually took place and from which he derived financial gains . We are unable to do so on the findings before us . * * * Id . at 50-51 .

- 1 1 - In commissioner V . Duberstein, 363 U .S . .278,(1960), the .Supreme Court further clarified the meaning of the term "gift" n section 22 (b)(3') of the' 1939 Code- .'

Duberstein 'involved two consolidated cases .

. Id . at 279 .' In one of those cases", the taxpayer, Mr . Dubers ein, was president of- a company ''that had- done business for a umber of--r-Ay h another com an p .

y Mohave Metal Corporation (M hawk) .

Id . at 280 . From ; time to 'time, th president'of"Mohawk, Mr . Berman, Asked Mr .' "Duberstein=whether b knew of " otential cu p torners for Mohawk's products ;' and Mr .

Duberstein provided r . Berman with some names-." Id .

Thereafte Mr . Berman telephone ;Mr . Duberstein and told him that- the information that Mr . -uberstein~"gave .MrI .`Berman regarding poten tial customers'had been so helpful that he .wanted to give Mr .

Duberstein a present- Id .

Mr . Duberstein told Mr' .'Berman that he owed'him nothing .

Id .

Mr . Berman insisted ."that Mr .

Duberstein accept a C di(cid:127)llac as-'a gift-from Mohawk, and Mr .

Duberstein ultimatel y relented and accepted the'Cadillac .

Id . a 280-281 . Mr . Duberst in""excluded the Cadillac from-his gross income as a- gift unde 'section 22 (b) (3') of the 1939 Code . ' Id ., a 281 . `The Commissione f Internal Revenue ( Commissioner ),deter- mined that the valu e f the-Cadillac was includible in Mr .

Duberstein Is-gross i n ome .

Id .

The Tax Court of the'Unite d States`, 'the predecessc r of this Court,"upheld''that determination ' 'See supra note Id .

The United States Court of Appeals for the Sixth-Circuit (Court, of Appeals for the Sixth Circuit) disagreed and reversed the decision for the Commissioner of the Tax Court of the United States .

Id .

The Supreme Court reversed the judgment of th e Court of Appeals for the Sixth Circuit .

Id . at 293 .

.

. In the other case involved in Duberstein , the taxpayer, Mr .

Stanton, had been employed by Trinity Church (Trinity) for approximately ten years when its board of directors (Trinity's board) terminated the treasurer of Trinity Operating ;, Co . (trea- surer), Trinity's wholly owned subsidiary that managed its real estate holdings .

Id . at 281-282 . At a special meeting o f Trinity's board, Mr . Stanton asked Trinity's board to reconsider the treasurer's termination .

: . Id . at 282 . The minutes from that meeting reflected that "'resentment was expressed as to th e "presumptuous" 'suggestion that the action of the Board, taken after long deliberation, should be changed .

Id .

Trinity's board, however, . did give the treasurer the opportunity to resign rather than be discharged .

Id .

When the treasurer did not resign, Trinity's board terminated his employment .

Id .

In a resolution, Trinity's board agreed to pay . the treasurer six months' salary .

Id . at 282-283 . Thereafter, Mr . Stanton submit- ted his resignation "in order to avoid any such embarrassment or question at any time as to his willingness to resign if the Board desired" .

Id . at 283 .

* Trinity's board did not accept his _ 13 _ resignation Id .

Mr ., Stanton again - submitted his resignation the following week,' and Trinity ''s .boardaccepted it . ° Id .

Afte Mr . Stanton ' s resign tion , Trinity's "board passed a resolution' that stated in perti ent part : "`in appreciation of the service s rendered by Mr`. Stan on .

.

. a"gratuity is hereby . awarded to "h Lm of Twenty 'Thousand D filar"s, .payable to Yim' in equal installments, of Two (cid:127) Thousand Doll rs at the end of -each ,°and every month'-" .

Id . at 281-282 .

After Trinity' s board passed the'resolutio n ingto make Mr . Stanton :a gift ."

Id . at luded'the total amount of the payments fr o gift under 'section 22 (b) (3) of the :1939 he Commissioner determined-'that that tota l in Mr ., Stanton's gross-income .

Id .

Mr .

Stanton paid the tax'lattributable to that determination,,an d commenced suit for alrefund in the United States District Cour t for the Eastern Disti4ict' of New York (District Court)-.

Id . - T h District Court held -hat the total amount of payments to Mr .

Stanton constituted gift under section 22(b)(3) of"the 1939 Code .

Id .

The United States Court of Appeals-for the Second .Circuit (Court of Appeals for the (cid:127)Secbnd Circuit) disagreed an d reversed-the judgment of the :District Court- .j Id, The Supreme Court vacated`,the judlgment of the . Court of-Appeals for -the Seco d circuit and remanded he case to the District Court -"for(cid:127)furthe I proceedings not . inconsistent with this opinion ."

Id . at 293 . .

In considering the issue under section 22(b)(3) of the 1939 Code presented in each of the cases involved in Duberstein , the Supreme Court4set forth the principles under which each of those issues was to be resolved . According to the Supreme Court :

Old Colony Trust Co . v . Com- the statute [section 22(b)(3) of the 1939 Code] does not use the term "gift" in the common-law sense, but in a more colloquial sense . This Court has indicated that a voluntarily executed transfer of * * * property by one to another, . without any consideration or compensa- tion therefor, though a common-law gift, is not neces- sarily a~"gift" within the meaning of the statute . For the Court has shown that the mere absence of a legal or moral obligation to make such ,a payment does not estab- lish that it is a gift . missioner , 279 U .S . 716, 730 [(1929)] . And, impor- tantly, if the payment proceeds primarily from "the constraining force of any moral or legal duty," or from "the incentive of anticipated benefit" of an economic nature, Bogardus v . Commissioner , 302 U .S . 34, 41 [(1937)], it is not a gift . * * * A gift in the statu- tory sense, on the other hand, proceeds from a "de- tached and disinterested generosity," Commissioner v . LoBue , 351 U .S . 243, 246 [(1956)] ; "out of affection ; respect,,; admiration, charity, or like impulses ." Robertson v . United States , .* * * [343 U .S . 711, 714 (1952)] . And in this regard, the most critical consid- eration * * * is the transferor's "intention ." Bogardus'v . Commissioner , 302 U .S . 34,43 [(1937)] . "What controls is theintention with which payment, however voluntary, has been made ." senting opinion) .

Id . , at 45 (dis- The Government says that this "intention"!of,the transferor cannot mean what the cases on the common-law concept of gift call "donative intent ." With that we are in agreement, for our decisions fully support this . Moreover, the Bogardus case itself makes it plain that the donor's characterization of his action is not determinative--that there must be an objective,Jinquiry .as to whether what is called a gift amounts to"it in reality . * * * [Fn . refs . omitted .]

Id . at 285-286 .

In the case inv lying Mr . Duberstein, the Supreme Cour t applied th e above-qu ted principles and concluded : ' we are in agre e that it canno t Court was "cle a that as trier o ing that despit of the Cadillac obligation, eve at bottom a re c or an induceme n the future . W e that such a co n * Court" s part .

ent, on the evidence we have set forth, e said that the conclusion of the Ta x ly,,erroneous ." _It seems to us plai n the facts it was warranted in conclu d the characterization,of the transfe r by the parties and the absence of an y of a moral nature, to make it, it wa s mpense for'Duberstein's past services , for him to be of-further service i n cannot say with the Court' of Appeals " lusion_was "mere suspicion" on the Ta x * * Id . at 291-292 .

In :"the case inv, lving.Mr . Stanton, the Supreme Court applie d .the above-quoted'priiciples and concluded :

it,is critical . ere that the District Court as trier o f .fact made only he simple and unelaborated finding tha t the transfer : in question was a "gift ." To be sure, conciseness is to be strived for, and prolixity avoided,"in finings but, * * .* there comes a point where findings become so sparse-and conclusory as t o give no revelat'on of what the : District . Court's . concep t of the determin'ng facts and legal standard may be . *_* * Such conc usory, .general findings do not consti- tute compliance with Rule 52'sE⁷¹ direction to "find th e .. . conclusions facts specially .and state separately of law thereon .' While the standard of law in this area is not a c mplex one, we * * * think th e unelaborated finding of ultimate fact here cannot stan d . It affords th e as a fulfillmen -of these requirements .' rreviewing court not the semblance of an indication of the legal_.stand rd,with :,which the trier of fact ha s 7In referring .t "Rule,-5 2", the Supreme Court was referrin to Fed . R : Civ . P . 52(a) in effect when the District Court entered its judgment ., That rule was amended with changes not_ pertinent here . See Fed . R . Civ . P . 52(a) .

16 - approached his task . For all that appears, the Dis- trict Court may have viewed the form of the resolution or the simple absence of legal consideration as conclu- sive . While the judgment of the Court of Appeals cannot stand, * * * [we] think there must be further proceedings in the District Court looking toward new and adequate findings of fact . * * * [Fn . ref . :lomit- . ted .

] Id . at 292-293 .

In relying solely on Helvering v . Am . Dental Co . , 318 U .S .

322 (1943 .), to,Gsupport his position that AES's discharge of $3,043 of petitioner's consolidated student loan constituted a gift under section 102(a), petitioner fails to acknowledge that the Supreme Court in Commissioner v . Jacobson , 336 U .S . at 50-51, and Commissioner v . Duberstein , 363 U .S . at 292-293', requires us to consider AES's intention in discharging $3,043 of petitioner's consolidated student loan . We shall do so now .

We have found that AES offered AES's incentive program in order to induce individuals like petitioner to consolidate their student loans with AES . We-have also found that in 2004, pursu- ant to AES's incentive program, AES discharged $3,043 of peti- tioner's consolidated student loan because 36 consecutive on-time payments had been made on that loan . On the record before us, we find .that AESdid not intend to discharge $3,043 of petitioner's consolidated student loan out of "detached and disinterested generosity", Commissioner v . LoBue , 351 U .S . 243, 246 (1956), or "out of affection, respect, admiration, charity or like im- pulses", Robertson v . United States , 343 U .S . 711, 714 (1952) .

- 17, See Commissioner v . :ub erstein , supra at-,285 .-, :,On that record , further find that pe itioner has failed to carry his burden o f establishing that, i discharging $3,043 of petitioner's conso l dated student loan, .P'ES intended to make a gift to him . ' Based upon our xamination of the entire-record before us , we find that the $3,043 of petitioner's consolidated student l o that AES discharged is not-excludable for-his taxable year 200 4 from his gross income under section 102(a) . On that record, we further find that petitioner must include for that year that amount .in his gross i come . ' We have consider d all of the parties' respective conten- tions and arguments t at are not discussed herein, . and we fin d them to be-without me it, irrelevant, and/or moot .

'In making our fi dings regarding AES's intention in dis- charging $3,043 of pe itioner's consolidated student loan ., we have not relied merely,y on the 2004 Form 1099-C that AES issued t petitioner and that snowed $3,043 as the amount, of debt canceled -We have relied upon tie entire record before us in making thos e findings .

ner further argues that, even if we wer e 3 of petitioner's consolidated student loa includible in his gross income, he shoul d 90n brief,, petiti to,find that the $3,041 that AES discharged is recognize that income an . We reject that argument . Income fr o consolidated student 1 the discharge of ;indeb edness is income for the year in which th ' indebtedness is discha ged .- Sec . 61(a)(12) ; see Jelle v . Commis- sioner , 116 T .C . 63 (2b⁰¹) .

over the remaining life of petitioner's ..,To reflect the foregoing, Decision will be entere d for respondent .

95. T, .t . 82, 91 (1990) , affd . 943 F .2d 22 (8th Cir . 1991) ..