Konstantin Anikeev & Nadezhda Anikeev

T.C. Memo. 2021-23UNITED STATES TAX COURT
KONSTANTIN ANIKEEV AND NADEZHDA ANIKEEV, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13080-17. Filed February 23, 2021.
Jeffrey M. Sklarz and Noelle T. Geiger, for petitioners.
John Richard Mikalchus and Erika B. Cormier, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GOEKE, Judge: This is a deficiency case in which respondent determined
that petitioners are liable for deficiencies totaling $9,928 for 2013 and $93,845 for
2014.1 These amounts reflect increased amounts set forth in respondent’s first
1
Unless otherwise indicated, all section references are to the Internal
(continued...)
Served 02/23/21
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[*2] amendment to answer. Respondent asserts that petitioners must recognize
additional income totaling $35,665 for 2013 and $276,381 for 2014 on the basis of
rewards that petitioners acquired from American Express equal to 5% of their
purchases of prepaid Visa gift cards, debit cards, and money orders and that were
paid to them in the form of statement credits against their American Express bills.
Respondent argues that the rewards are income rather than rebates because
petitioners acquired the rewards from the purchase of Visa gift cards, debit cards,
and money orders which respondent argues are cash equivalents and not goods or
services that may be subject to rebates.
Respondent has conceded that $535 and $894 of the rewards accumulated in
2013 and 2014, respectively, were for the purchase of products other than Visa gift
cards, debit cards, and money orders and thus are not subject to tax. In the notice
of deficiency respondent also determined that petitioners earned additional interest
income totaling $562 for 2014. Respondent has conceded this issue. He also
determined that petitioners received a State tax refund of $793 for 2014.
Petitioners have conceded this issue. Respondent’s determinations result in
1
(...continued)
Revenue Code in effect at all relevant times, and all Rule references are to the Tax
Court Rules of Practice and Procedure. Amounts are rounded to the nearest dollar.
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[*3] computational adjustments to petitioners’ itemized deductions and
exemptions for 2014 as a result of the increase to their taxable income.
FINDINGS OF FACT
When their petition was timely filed, petitioners’ legal residence was in
Connecticut.
In 1995 Mr. Anikeev earned a bachelor of science degree in physics from
the Moscow Institute of Physics & Technology (MIPT), graduating summa cum
laude. In 1997 he earned a master of science in physics degree from MIPT,
graduating with honors. In 2004 he earned a doctorate in physics from the
Massachusetts Institute of Technology. During the 2013 and 2014 tax years he
worked for IBM as a consultant. The record consists of admissions, stipulated
facts and exhibits, and Mr. Anikeev’s testimony.
I. American Express Blue Cash Rewards Program
During 2013 and 2014 American Express offered a rewards program known
as Blue Cash from American Express Card (Blue Cash Rewards Program or
Rewards Program). The Blue Cash Rewards Program paid Blue Cash Reward
Dollars (Reward Dollars) to credit card users who made eligible purchases on their
American Express cards. The number of Reward Dollars that a card user could be
awarded pursuant to the Blue Cash Rewards Program was based on a percentage
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[*4] of the dollar amount of the card user’s eligible purchases. Eligible purchases
were purchases made on the card for goods and services minus returns and other
credits.
Pursuant to the terms of the Blue Cash Rewards Program, eligible purchases
did not include: (1) fees or interest charges, (2) balance transfers, (3) cash
advances, (4) purchases of traveler’s checks, (5) purchases or reloading of prepaid
cards, or (6) purchases of any cash equivalents. For purposes of the Blue Cash
Rewards Program, a Reward Year comprised 12 billing periods in a row beginning
with the first anniversary of the opening of the account.
For the first $6,500 of purchases in each Reward Year petitioners received
Reward Dollars equal to 1% of everyday purchases and 0.5% of all other eligible
purchases. For purchases in excess of $6,500 petitioners received Reward Dollars
equal to 5% of everyday purchases and 1% of all other eligible purchases. The
Blue Cash Rewards Program defined everyday purchases as eligible purchases
made in the United States at: (1) supermarkets (superstores and warehouse clubs
are not considered supermarkets), (2) gas stations for purchases of $400 or less of
gasoline (superstores, supermarkets, and warehouse clubs that sell gasoline are not
considered gas stations), and (3) select major drugstores.
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[*5] Reward Dollars earned during a billing period became available for
redemption after the subsequent billing period if the card was in good standing.
American Express treated all of petitioners’ purchases in 2013 and 2014 as
qualifying for Reward Dollars. The first page of each billing statement included a
statement of Reward Dollars earned during the billing period, and the last page
included a Reward Dollars summary that described Reward Dollars earned and
redeemed during the billing period. Card users could redeem Reward Dollars for
Amazon gift cards or as credits on their American Express card balances
(statement credits). There was no limit on the amount of Reward Dollars a card
user could earn in a Reward Year.
II. Prepaid Gift and Debit Cards
Prepaid Visa gift cards can be used for purchases in the United States
anywhere that Visa debit cards are accepted, including online. Product numbers
assigned by the stores where the cards are sold are affixed and associated with the
cards.
A reloadable debit card is a debit card to which funds can be added without
having a bank account. The holder of a reloadable debit card can purchase reload
amounts (reloads), increasing the amount that is available on the reloadable debit
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[*6] card. Reloadable debit cards can be used for purchases in the same way as
any other debit card.
III. Petitioners’ Participation in the Blue Cash Rewards Program
A. American Express Cards Owned by Petitioners
Mr. Anikeev had a Blue Cash American Express credit card ending in 1005
(1005 Card) during 2013 and 2014 with a $35,000 credit limit. Mrs. Anikeev was
an authorized user of the card. Mr. Anikeev was in good standing with American
Express throughout 2013 and 2014. In November 2014 American Express closed
the 1005 Card. When the 1005 Card was closed, Mr. Anikeev redeemed Reward
Dollars totaling $3,525 as a statement credit that American Express paid to him by
check as a credit balance refund on November 21, 2014.
Mrs. Anikeev had a Blue Cash American Express credit card ending in 1001
(1001 Card) during 2014 with a $15,500 credit limit. Mrs. Anikeev was in good
standing with American Express throughout 2014. In October 2014 American
Express closed the 1001 Card. When the 1001 Card was closed, Mrs. Anikeev
redeemed Reward Dollars totaling $3,025 as a statement credit that American
Express paid to her by check as part of a credit balance refund of $9,654 on
October 31, 2014.
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[*7] B. Purchase of Visa Gift Cards
To generate as many Reward Dollars as possible, petitioners used the 1005
Card and the 1001 Card (American Express cards) to buy as many Visa gift cards
as they could from local grocery stores and pharmacies. In addition to the values
of the gift cards, petitioners were charged service fees for the gift cards of between
0.8% and 1.2% of the gift cards’ face values. They used the gift cards to purchase
money orders and were charged service fees for the money orders between 0.07%
and 0.33% of the dollar amounts of the money orders. They deposited the money
orders into their bank accounts. The fees associated with a $500 gift card and a
related money order purchase were between $6 and $7.
Upon a payment of their monthly American Express bills, they received the
applicable percentage, either 1% or 5%, of the total purchases in Reward Dollars
that they could use for a statement credit or redeem for Amazon gift cards. Most
of petitioners’ total dollars spent with the American Express cards were for
purchases of Visa gift cards.
On occasion petitioners paid their American Express bills through
MoneyGram, a money transfer company offering its services in participating
Walmart stores. When using MoneyGram, petitioners paid the American Express
bill as well as the applicable service fee with a reloadable debit card, and
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[*8] MoneyGram would transmit the payment to American Express electronically.
Petitioners used their American Express cards to purchase the reloadable debit
cards that they used to pay their American Express bills, and the purchase of debit
cards and reloads also generated Reward Dollars.
C. Purchase of Money Orders With American Express Cards
On occasion Mr. Anikeev purchased money orders from Rite Aid with one
of the American Express cards. The purchase of these money orders generated
Reward Dollars.
D. Total Purchases
All of petitioners’ charges of more than $400 in single transactions with the
American Express cards during 2013 and 2014 were for Visa gift cards, reloadable
debit cards, or money orders. In 2013 petitioners’ charges on the 1005 Card
totaled $1,219,077. Of this amount, $1,208,376 was for charges of more than
$400 in single transactions for Visa gift cards, reloadable debit cards, and money
orders. Accordingly, over 99% of the charges on the 1005 Card during 2013 were
for Visa gift cards, reloadable debit cards, and money orders. Petitioners made
$10,702 in purchases during 2013 that were not for Visa gift cards, reloadable
debit cards, or money orders. In 2014 petitioners made charges totaling
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[*9] $5,184,033 on their American Express cards for Visa gift cards, reloadable
debit cards, and money orders.
E. Deposits of Money Orders
The purchase of money orders with the Visa gift cards was very important
to Mr. Anikeev because it provided a means to deposit the amounts charged on the
American Express cards into petitioners’ bank accounts. Petitioners typically
purchased the money orders with the Visa gift cards, but on some occasions they
purchased the money orders directly with their American Express cards. In 2013
and 2014 petitioners deposited a combined $4,028,743 in money orders into their
bank accounts.
F. Payment of American Express Bills
Petitioners had to consider the credit limits on the American Express cards
when making purchases. To have credit available for their purchases of Visa gift
cards and reloads on their debit cards, petitioners made frequent payments on the
balances of their American Express cards. They were not charged and did not pay
fees or interest on either American Express card during 2013 or 2014.
G. Total Reward Dollars Redeemed
Petitioners redeemed $36,200 in Reward Dollars as statement credits in
2013 and $277,275 in 2014. On their joint tax return filed for the 2013 tax year,
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[*10] they reported as income $149,773 in wages, $2,338 in interest, and $299 in
ordinary dividends. They did not report any income from the Rewards Program.
On their joint tax return filed for the 2014 tax year, they reported as income
$161,480 in wages, $1,566 in interest, $78 in ordinary dividends, and $1,821 in
capital gains. They did not report any income from the Rewards Program.
On March 23, 2017, respondent issued a notice of deficiency to petitioners
for 2013 and 2014 determining additional “other income” of $29,775 and
$265,485, respectively, from the Rewards Program. In the first amendment to
answer, respondent increased the amount of the other income from the Rewards
Program to $36,200 for 2013 and $277,275 for 2014 which increased the tax
deficiencies from $8,264 to $9,928 for 2013 and from $89,847 to $93,845 for
2014.
Respondent has not asserted that petitioners should recognize gain on the
exchange of the gift or debit cards into assets that could be deposited into their
bank accounts (or the electronic transfer of money) attributable to the 5% rebates.
Rather, respondent’s consistent position is that Reward Dollars generated ordinary
income to petitioners when issued by American Express.
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[*11] OPINION
Respondent summarizes his position as follows:
Generally, when a payment is made by a seller to a customer as an
inducement to purchase property, the payment does not constitute
income but instead is treated as a purchase price adjustment to the
basis of the property. Pittsburgh Milk Co. v. Commissioner, 26 T.C.
707 (1956); Rev. Rul. 76-96, 1976-1 C.B. 23. In this case, however,
petitioners did not purchase goods or property to which a basis
adjustment may apply. Rather, they purchased cash equivalents, in
the form of Visa gift cards, Reloads for the Green Dot card, and
money orders, to which no such adjustment can apply. See Cowden
v. Commissioner, 289 F.2d 20, 24 (5th Cir. 1961) (setting forth the
cash equivalence doctrine); Bixby v. Commissioner, 58 T.C. 757(1972) (cash equivalents have basis equal to face value). As a result,
the Reward Dollars paid to petitioners as statement credits for the
charges relating to cash equivalents are an accession to wealth and
income to petitioners under I.R.C. § 61.
Petitioners’ position is as follows:
The IRS [Internal Revenue Service] proposes to tax Mr. Anikeev’s
rewards points because he did not earn them by acquiring goods or
services. The IRS’ position is: “rewards generated where no goods
or services are purchased are taxable. Thus rewards generated by the
purchases of gift cards and then the purchases of money orders,
without the purchase of any goods or services are taxable.” The
manner of purchase of something, however, does not constitute an
accession of wealth. Applying I.R.C. § 61, the rewards points would
be taxable when received, not based on how the gift cards were later
used. What Mr. Anikeev later used the gift cards (which are a
product, given that they have a Universal Product Code) to purchase
should not matter.
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[*12] We note the difference in respondent’s description of his position and
petitioners’ description of respondent’s position. Petitioners quote an
interrogatory response by respondent, and respondent never denies that this
describes his position.
Section 61(a) broadly defines gross income. It has a “sweeping scope”.
Commissioner v. Schleier, 515 U.S. 323, 327-328 (1995) (quoting Commissioner
v. Glenshaw Glass Co., 348 U.S. 426, 429 (1955)). On the other hand,
adjustments to the purchase prices of goods or services have consistently been
considered nontaxable. Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956)
(addressing income of the seller of goods who provided price reductions); Rev.
Rul. 76-96, 1976-1 C.B. 23, as modified by Rev. Rul. 2005-28, 2005-1 C.B. 997.
Rev. Rul. 76-96, supra, is a key link in the chain of IRS reasoning on credit
card rewards. It concerned the tax treatment of rebates paid by an automobile
manufacturer to qualifying retail customers who purchased its automobiles. Rev.
Rul. 76-96, supra, held that the receipt of the rebate by the retail customer did not
result in the receipt of gross income. Rather, the rebate was a reduction in the
purchase price, requiring a downward adjustment to the basis of the automobile
pursuant to section 1012.
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[*13] At the outset of the trial of this case, respondent’s counsel said: “And it’s a
long-standing IRS policy, Mr. Sklarz is right, long-standing IRS policy is that card
rewards are not taxable. And the rationale for that is that the reward itself acts as a
discount on whatever property or services are being purchased by the consumer.”
This policy reflects the recognition that a taxpayer who avails himself or
herself of a discount in acquiring goods and services has no accession to wealth.
That taxpayer has retained more of his or her wealth than a taxpayer who pays full
price for the same good or service, but that taxpayer has no additional income; he
or she simply has reduced consumption. Although as Benjamin Franklin wisely
observed, “[a] penny saved is two pence clear” (which became known more
colloquially as “a penny saved is a penny earned”), the income tax law imposes a
tax only on the future penny earned, not on the current penny saved.
This case rests squarely in the legal chasm between the basic principle to
broadly define income and respondent’s own policy. Petitioners’ aggressive
efforts to generate Reward Dollars have created a dilemma for respondent which is
largely the result of the vagueness of IRS credit card reward policy. Petitioners
clearly acquired economic benefits by cleverly and relentlessly manipulating the
Rewards Program. Their actions never offended American Express and had Mr.
Anikeev not been so successful in his efforts he likely would have been ignored by
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[*14] the IRS. However, the scale of his success in acquiring rewards makes this
case an extreme test of the longstanding nontaxability of credit card reward
programs. To avoid offending his own longstanding policy respondent seeks to
apply the cash equivalence concept. As we will explain herein we do not find it is
a good fit.
Most of petitioners’ transactions were for Visa gift cards. The issue as
presented by the parties regarding the Visa gift cards turns on which event is the
focus of our inquiry, the purchase of the gift cards (petitioners’ focus) or their later
use of the gift cards to purchase money orders (respondent’s focus).
Respondent’s pretrial memorandum asserts as an alternative position the
analysis of Rev. Rul. 76-96, supra, which would tax as income the gains on
petitioners’ purchases of money orders with Visa gift cards, reducing petitioners’
bases in the Visa gift cards by the Reward Dollars they received on the purchases
of the Visa gift cards. Respondent later abandoned this alternative position,
although it would appear to be more compatible with the rationale of the IRS
credit card reward policy. Under Rule 31(c), a party may plead in the alternative,
and the alternative positions need not be consistent. Respondent declined to
pursue an alternative position, and we should not assume to do it for him. Rather,
we must properly apply the law including IRS policy not to include credit card
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[*15] rewards in income to the parties’ positions and not expand established
common law to accommodate respondent’s attempt to limit his own policy. The
IRS having established a longstanding policy, respondent must be held to the
terms of that policy and we will apply those terms as previously made public.
Petitioners allege that the gift cards are goods and services and their
subsequent use is irrelevant. Respondent argues that the gift cards are cash
equivalents because of petitioners’ intended use of the cards to purchase money
orders.
The rebate rule, as set forth in IRS guidance, states that a purchase incentive
such as credit card rewards or points is not treated as income but as a reduction of
the purchase price of what is purchased with the rewards or points. Rev. Rul.
76-96, supra; see IRS Publication 17, Your Federal Income Tax 94 (2015) (“A
cash rebate you receive from a dealer or manufacturer of an item you buy is not
income, but you must reduce your basis by the amount of the rebate. * * * You
buy a new car for $24,000 cash and receive a $2,000 rebate check from the
manufacturer. The $2,000 is not income to you. Your basis in the car is $22,000.
This is the basis on which you figure gain or loss if you sell the car and
depreciation if you use it for business.”). Utility rebates are treated the same way:
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[*16] If you are a customer of an electric utility company and you
participate in the utility’s energy conservation program, you may
receive on your monthly electric bill either:
• A reduction in the purchase price of electricity furnished
to you (rate reduction), or
• A nonrefundable credit against the purchase price of the
electricity.
The amount of the rate reduction or nonrefundable credit is not
included in your income.
IRS Publication 17, supra, at 97.
The Visa gift cards were quickly converted to assets that could be deposited
into petitioners’ bank accounts to pay their American Express bills. The Reward
Dollars are distinguishable from the noncash awards or “Thank You Points”
earned in connection with maintaining a bank account in Shankar v.
Commissioner, 143 T.C. 140 (2014). In that case we held that redemption of the
noncash awards in exchange for an airline ticket resulted in income equal to the
value of the ticket for the year in which the awards were redeemed. We compared
the rewards to interest income. The bank had issued Form 1099-MISC,
Miscellaneous Income, on the basis of the value of the airline ticket in the year in
which the taxpayer redeemed the awards. Unlike the present case, the awards
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[*17] were not an incentive or rebate based on credit card purchases. The Reward
Dollars are not in the nature of interest income.
Respondent’s assertion of the inclusion in income of Reward Dollars turns
on the ultimate use of the Visa gift cards. Because petitioners used the Visa cards
to buy money orders to generate deposits to their bank accounts, respondent
contends that petitioners have purchased cash equivalents.2 Visa gift cards are not
redeemable for cash or eligible for deposit into a bank account, which is why
petitioners used them to purchase money orders. The benefit provided by allowing
a gift card as a substitute for a credit card is conveniently overlooked in
respondent’s denial of “product” treatment to the gift cards, which depends
completely on petitioners’ failure to purchase goods or services. Providing a
substitute for a credit card is a service via a product which is commonly sold via
displays at drug stores and grocery stores. American Express treated such
purchases as eligible for Reward Dollars throughout the years at issue.
Respondent ignores this, implying that the purchases should not have qualified for
Reward Dollars. He points to petitioners’ intended use of the cards, but whatever
petitioners’ intent they paid fees to acquire the gift cards and the convenience
2
On occasion petitioners paid their American Express bills using
MoneyGram’s money transfer services and paid MoneyGram with a reloadable
debit card.
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[*18] embodied in them. The fees were not a function of petitioners’ or any
customers’ intended use of the gift cards.
As stated previously, respondent has not argued that petitioners must
recognize gain on the exchange of the gift cards. Theoretically, on the basis of
established precedent, the Reward Dollars reduced petitioners’ bases in the Visa
gift cards that they purchased, and petitioners generated proceeds when they
converted the cards to money orders. To the extent the rebates exceeded the fees
charged to acquire the gift cards, it seems that gain was generated similar to the
gain that a purchaser of the rebated automobile would generate if the vehicle was
sold for more than the purchase price reduced by the rebate. Thus, it would appear
that the taxable event would not be the receipt of Reward Dollars upon the
purchase of their Visa gift cards but the transformation of the cards into cash
equivalents that could be deposited in a bank account. See Wentz v.
Commissioner, 105 T.C. 1, 11 (1995) (considering the discrete severable events
that made up a transaction that generates a purchase price adjustment).
Respondent asserts that petitioners’ Reward Dollars were not purchase price
adjustments but rather cash equivalents that are property equal to their face values.
He argues that no price adjustment is possible for the gift cards because cash
equivalents have basis equal to their face values. See Bixby v. Commissioner, 58
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[*19] T.C. 757, 785 (1972); see also UFE, Inc. v. Commissioner, 92 T.C. 1314,
1328-1329 (1989) (“Cash or cash equivalent items * * * are accorded basis at face
value.”); Felt v. Commissioner, T.C. Memo. 2009-245, slip op. at 15 (stating that
notes are cash equivalents with basis equal to face value), aff’d, 433 F. App’x 293(5th Cir. 2011).
We have relied on the cash equivalency doctrine to evaluate the proper
timing of income recognition when a taxpayer receives a contractual right to
receive payment in the future. See Cowden v. Commissioner, 289 F.2d 20 (5th
Cir. 1961), rev’g and remanding 32 T.C. 853 (1959); Griffith v. Commissioner, 73
T.C. 933, 937 (1980); Watson v. Commissioner, 69 T.C. 544, 549-552 (1978),
aff’d, 613 F.2d 594 (5th Cir. 1980); W. Oaks Bldg. Corp. v. Commissioner, 49
T.C. 365, 376 (1968); Ennis v. Commissioner, 17 T.C. 465, 470 (1951). A debt
obligation is a cash equivalent where it is a “promise to pay of a solvent obligor
and the obligation is unconditional and assignable, not subject to set-offs, and is of
a kind that is frequently transferred to lenders or investors at a discount not
substantially greater than the generally prevailing premium for the use of money”.
Cowden v. Commissioner, 289 F.2d at 24. The doctrine’s application thus far has
been limited to determining the timing of income recognition. Nevertheless, we
find that the three types of transactions in this case simply fail to fit the definition
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[*20] in Cowden, the seminal case. The cash equivalency doctrine implicitly
recognizes that the debt obligation being evaluated is property and stands for the
proposition that the form of the contractual right to future payment is not
controlling. See Warren Jones Co. v. Commissioner, 524 F.2d 788, 790 (9th Cir.
1975) (stating that under the doctrine a cash basis taxpayer must report income
received in the form of property only if the property is a cash equivalent), rev’g
and remanding 60 T.C. 663 (1973).
The most recent case respondent cites regarding cash equivalents is Felt v.
Commissioner, T.C. Memo. 2009-245. In Felt, we described the application of the
cash equivalent concept to a note that was a promise to pay by a solvent obligor.
Id., slip op. at 14-15. Reward Dollars petitioners received were not notes, but they
were commitments by American Express to allow petitioners credits against their
card balances. Respondent’s analysis leaps to the cash equivalence position
without an analysis of the origin of the Reward Dollars. Respondent’s position
holds weight only if the Reward Dollars were not an effect of the purchase price of
goods and services. Otherwise, all Reward Dollars would be taxable as cash
equivalent income. American Express offered the Rewards Program as an
inducement for card holders to use their American Express cards. For his own
reasons respondent has made a conscious choice to avoid the application of a
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[*21] rebate analysis to the taxability of the cash rewards as a reduction of basis.
In conclusion, we hold that the Reward Dollars associated with the Visa gift card
purchases were not properly included in income.
However, petitioners’ direct purchases of money orders and reloads of cash
into the debit cards using the American Express cards presents a different question
from the purchase of Visa gift cards. The Visa gift cards have product
characteristics. They provide a consumer service embodied in a simple plastic
card for convenience. The Visa gift cards are not redeemable for cash, but the
money orders purchased with the American Express cards and the infusion of cash
into the reloadable debit cards are difficult to reconcile with the IRS credit card
reward policy. No product or service is obtained in these uses of the American
Express cards other than cash transfers. The money orders are not properly treated
as a product subject to a price adjustment because they were eligible for deposit
into petitioners’ bank account from acquisition. Similarly, the cash infusions to
the reloadable debit cards were not product purchases. The reloadable debit cards
were used for Moneygram transfers, which are arguably a service. However, the
Reward Dollars in dispute were issued for the cash infusions, not the transfer fees.
Therefore, we uphold respondent’s inclusion in income of the related Reward
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[*22] Dollars for the direct purchases of money orders and the cash infusions to
the reloadable debit cards.
We note that the above holdings are not based upon the application of the
cash equivalence doctrine but rather the incompatibility of the direct money order
purchases and the debit card reloads with the IRS policy excluding credit card
rewards for product and service purchases from income. These holdings are based
on the unique circumstances of this case. We hope that respondent polices the
IRS policy in the future in regulations or public pronouncements rather than
relying on piecemeal litigation.
In reaching our holdings, we have considered all arguments made, and, to
the extent not mentioned above, we conclude they are moot, irrelevant, or without
merit.
To reflect the foregoing,
Decision will be entered under
Rule 155.