Jamieson v. Comm'r

T.C. Memo. 2008-118

UNITED STATES TAX COURT

WILLIAM D. AND JUDITH A. JAMIESON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16421-05. Filed April 29, 2008.

William D. and Judith A. Jamieson, pro sese.

Louise R. Forbes, for respondent.

MEMORANDUM OPINION

MARVEL, Judge: Respondent determined a deficiency in

petitioners’ Federal income tax of $6,078 for 2003. The sole

issue for decision is whether petitioners are liable for

alternative minimum tax (AMT) under section 55 as a result of the
 - 2 -

limitation on the amount of the AMT foreign tax credit imposed by

section 59(a)(2).1

Background

The parties submitted this case fully stipulated under Rule

122. The stipulation of facts is incorporated herein by this

reference. Petitioners resided in Rothesay, New Brunswick,

Canada, when the petition in this case was filed.

Petitioners are U.S. citizens who resided in Canada during

2003. Petitioners timely filed a joint Form 1040, U.S.

Individual Income Tax Return, for 2003. Most of petitioners’

reported income was earned and was taxable in Canada. Thus,

petitioners claimed foreign tax credits of $95,132 against their

reported U.S. tax liability of $96,429, resulting in a net U.S.

tax liability of $1,297. Petitioners did not compute their AMT

liability under section 55; instead they placed an asterisk on

line 42, Alternative minimum tax, of their Form 1040 that

referenced the “US-Canada Income Tax Treaty Articles XXIV and

XXIX”.

On April 7, 2005, respondent mailed petitioners a notice of

deficiency determining that they were liable for AMT of $6,078

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) in effect for the year in issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
 - 3 -

plus accrued interest.2 The deficiency resulted solely from

respondent’s application of the AMT foreign tax credit limitation

in section 59(a)(2).

On September 2, 2005, we received and filed petitioners’

petition contesting respondent’s notice of deficiency.

Petitioners allege in their petition that respondent erred in his

application of the section 59(a)(2) limitation on AMT foreign tax

credits because the Convention With Respect to Taxes on Income

and on Capital, U.S.-Can., Sept. 26, 1980, T.I.A.S. No. 11087

(U.S.-Canada Convention or Convention),3 prohibits the double

2
Petitioners do not dispute respondent’s calculation of
their AMT liability.
3
The U.S.-Canada Convention and two amending protocols,
Protocol Amending the Convention With Respect to Taxes on Income
and on Capital, U.S.-Can., Sept. 26, 1980, S. Treaty Doc. 98-7
(1983) (First Protocol), and Second Protocol Amending the
Convention With Respect to Taxes on Income and on Capital, U.S.-
Can., Sept. 26, 1980, as Amended by the Protocol on June 14,
1983, S. Treaty Doc. 98-22 (1984) (Second Protocol), entered into
force on Aug. 16, 1984.

The U.S.-Canada Convention has since been amended several
times. See Revised Protocol Amending the Convention With Respect
to Taxes on Income and on Capital, U.S.-Can., Sept. 26, 1980, as
Amended by the Protocols on June 14, 1983, and Mar. 28, 1984, S.
Treaty Doc. 104-4 (1995) (Third Protocol) and Protocol Amending
the Convention With Respect to Taxes on Income and on Capital,
U.S.-Can., Sept. 26, 1980, as Amended by the Protocols on June
14, 1983, Mar. 28, 1984, and Mar. 17, 1995, S. Treaty Doc. 105-29
(1997) (Fourth Protocol). Another protocol, Protocol Amending
the Convention With Respect to Taxes on Income and on Capital,
U.S.-Can., Sept. 26, 1980, as Amended by the Protocols on June
14, 1983, Mar. 28, 1984, Mar. 17, 1995, and July 29, 1997 (Fifth
Protocol), was executed on Sept. 21, 2007, S. Treaty Doc. 110-15
(2008). The Fifth Protocol is not relevant to this case and will
(continued...)
 - 4 -

taxation of U.S. citizens residing in Canada. Petitioners do not

dispute that the section 59(a)(2) limitation applies, but they

contend that articles XXIV and XXIX of the U.S.-Canada Convention

entitle them to claim additional foreign tax credits so as to

reduce their U.S. income tax liability to zero and thereby

prevent any double taxation on the same income by the United

States and Canada.

Discussion

I. Section 59(a)(2) Limitation on AMT Foreign Tax Credit

Generally, all U.S. citizens are subject to U.S. Federal

income tax, and all income of a U.S. citizen is subject to

taxation by the United States regardless of the citizen’s

residence or the source of the income. Sec. 1; Cook v. Tait, 265

U.S. 47, 56 (1924); sec. 1.1-1(a)(1), Income Tax Regs.

Consequently, U.S. citizens who reside or work abroad may face

double taxation when the United States and a foreign country tax

the same item of income. This hardship is generally alleviated,

however, under the Code through the foreign tax credit. See sec.

27(a).

Section 55 imposes an AMT in an amount equal to the excess,

if any, of the tentative minimum tax for the taxable year over

3
(...continued)
not be discussed in this opinion.
 - 5 -

the taxpayer’s regular tax for that year.4 However, the amount

of a noncorporate taxpayer’s tentative minimum tax is reduced by

the taxpayer’s AMT foreign tax credit under section 59(a). Sec.

55(b)(1)(A)(i). Section 59(a)(2) limits the amount of the AMT

foreign tax credit that can be claimed in a given year. As in

effect for 2003,5 section 59(a)(2) provides as follows:

(2) Limitation to 90 percent of tax.--

(A) In general.--The alternative minimum tax
foreign tax credit for any taxable year shall not
exceed the excess (if any) of–

(i) the pre-credit tentative minimum tax for
the taxable year, over

(ii) 10 percent of the amount which would be
the pre-credit tentative minimum tax without
regard to the alternative tax net operating loss
deduction and section 57(a)(2)(E).

Petitioners do not dispute that section 59(a)(2) limits

their foreign tax credit or that the deficiency respondent

determined correctly reflects the calculation of the limitation.

The dispute between the parties arises from the parties’

arguments regarding the interrelationship of the U.S.-Canada

Convention and section 59(a)(2). Both parties maintain that

there is no conflict between the Convention and section 59(a)(2).

4
The definitions and rules for computing a taxpayer’s
tentative minimum tax and regular tax are found in sec. 55(b) and
(c), respectively.
5
Sec. 59(a)(2) was repealed, effective for taxable years
beginning after Dec. 31, 2004, by the American Jobs Creation Act
of 2004, Pub. L. 108-357, sec. 421, 118 Stat. 1514.
 - 6 -

However, the conclusions that they reach are diametrically

opposite. Respondent claims that petitioners may not claim an

AMT foreign tax credit for the full amount of tax paid in Canada

because of section 59(a)(2), while petitioners claim that the

section 59(a)(2) limitation is offset by additional credits under

the U.S.-Canada Convention in an amount sufficient to reduce

their U.S. income tax liability to zero. In order to resolve

these conflicting interpretations of the allegedly harmonious

relationship between the U.S.-Canada Convention and section

59(a)(2), we must examine the applicable statutes and Convention

provisions to decide (1) whether the Code provisions and the

Convention can be harmonized as both parties contend, and (2) if

they cannot be harmonized, which provision qualifies as the “last

in time”.

II. Applicable Statutes and U.S.-Canada Convention Provisions

The U.S.-Canada Convention and two amending protocols,

Protocol Amending the Convention With Respect to Taxes on Income

and on Capital, U.S.-Can., September 26, 1980, S. Treaty Doc. 98-

7 (1983), signed on June 14, 1983 (First Protocol), and Second

Protocol Amending the Convention With Respect to Taxes on Income

and on Capital, U.S.-Can., September 26, 1980, as Amended by the

Protocol on June 14, 1983, S. Treaty Doc. 98-22 (1984), signed on

March 28, 1984 (Second Protocol), entered into force on August
 - 7 -

16, 1984. For purposes of this case, the relevant Convention

provision is found in article XXIV.

Article XXIV of the U.S.-Canada Convention generally

provides that double taxation by the United States and Canada

shall be avoided. Paragraph 1 of article XXIV provides the

general rule as follows:

1. In the case of the United States, subject to
the provisions of paragraphs 4, 5, and 6, double
taxation shall be avoided as follows: In accordance
with the provisions and subject to the limitations of
the law of the United States (as it may be amended from
time to time without changing the general principle
hereof), the United States shall allow to a citizen or
resident of the United States * * * as a credit against
the United States tax on income the appropriate amount
of income tax paid or accrued to Canada * * *

Paragraph 4 of article XXIV applies to U.S. citizens who are

residents of Canada and provides:

4. Where a United States citizen is a resident of
Canada, the following rules shall apply:

(a) Canada shall allow a deduction from the
Canadian tax in respect of income tax paid or accrued
to the United States in respect of profits, income or
gains which arise (within the meaning of paragraph 3)
in the United States, except that such deduction need
not exceed the amount of the tax that would be paid to
the United States if the resident were not a United
States citizen; and

(b) For the purposes of computing the United
States tax, the United States shall allow as a credit
against United States tax the income tax paid or
accrued to Canada after the deduction referred to in
subparagraph (a). The credit so allowed shall not
reduce that portion of the United States tax that is
deductible from Canadian tax in accordance with
subparagraph (a).
 - 8 -

In 1986, while the U.S.-Canada Convention was in force,

Congress amended the AMT imposed on noncorporate taxpayers by

section 55 and added section 59 to the Code. Tax Reform Act of

1986 (1986 Act), Pub. L. 99-514, sec. 701(a), 100 Stat. 2320.

Section 55(b)(1)(A)(i), as amended and in effect for 2003,

provides that the amount of a noncorporate taxpayer’s tentative

minimum tax shall be reduced by the taxpayer’s AMT foreign tax

credit under section 59(a). Section 59(a)(2) limits the amount

of the AMT foreign tax credit that can be claimed in a given

year.

The legislative history of section 59(a)(2) explains the

introduction of the AMT foreign tax credit limitation:

While allowance of the foreign tax credit for minimum
tax purposes generally is appropriate, the committee
believes that taxpayers should not be permitted to use
the credit to avoid all minimum tax liability. U.S.
taxpayers generally derive benefits from the protection
and applicability of U.S. law, and in some cases from
services (such as defense) provided by the U.S.
Government, even if all of such taxpayers’ income is
earned abroad. Thus, it is fair to require at least a
nominal tax contribution from all U.S. taxpayers with
substantial economic incomes. [S. Rept. 99-313, at 520
(1986), 1986-3 C.B. (Vol. 3) 1, 520; emphasis added.]

Although the U.S.-Canada Convention was in force at the time,

Congress nevertheless enacted the limitation in section 59(a)(2)

to require all U.S. taxpayers with substantial economic incomes

to contribute to the cost of the services they receive from the

Federal Government.
 - 9 -

In 1988 Congress examined the relationship between Code

provisions and treaties during its consideration of the Technical

and Miscellaneous Revenue Act of 1988 (TAMRA), Pub. L. 100-647,

102 Stat. 3342, and incorporated into TAMRA an amendment to

section 7852(d). TAMRA sec. 1012(aa)(1), 102 Stat. 3531. As

amended and in effect for 2003, section 7852(d) provides that

neither a provision of a treaty nor a law of the United States

affecting revenue shall have preferential status by reason of its

status as a law or a treaty. In enacting the amendment to

section 7852, Congress intended to make clear that conflicts

between a revenue law and a treaty must be resolved by applying

the principle that the provision adopted later in time controls

(the last-in-time rule). S. Rept. 100-445, at 321-322 (1988);

see also Chae Chan Ping v. United States, 130 U.S. 581, 600

(1889). Congress went even further in making its intentions

known regarding the obligation of U.S. citizens residing abroad

to pay at least some AMT. In addition to amending section

7852(d), Congress enacted the following provision as TAMRA

section 1012(aa)(2), 102 Stat. 3531:

(2) Certain amendments to apply notwithstanding
treaties.--The following amendments made by the Reform
Act [the 1986 Act] shall apply notwithstanding any
treaty obligation of the United States in effect on the
date of the enactment of the Reform Act:

(A) The amendments made by section 1201 of the
Reform Act.
 - 10 -

(B) The amendments made by title VII of the Reform
Act to the extent such amendments relate to the
alternative minimum tax foreign tax credit.

TAMRA section 1012(aa)(2) clarified that section 59(a)(2) applies

notwithstanding treaty obligations in effect on the date of

enactment of the 1986 Act. S. Rept. 100-445, supra at 319.

Following the enactment of TAMRA, the U.S.-Canada Convention

was amended. The revised Protocol Amending the Convention With

Respect to Taxes on Income and Capital, U.S.-Can., September 26,

1980, as Amended by the Protocols on June 14, 1983, and March 28,

1984, S. Treaty Doc. 104-4 (1995) (Third Protocol), which was

signed on March 17, 1995, and entered into force on November 9,

1995, made changes to Article XXIV affecting credits for Social

Security tax, corporate tax exemptions, and the tax treatment of

dividends, interest, and royalties, Third Protocol, art. 12, but

did not alter the general rule found in article XXIV, paragraph

1, id. The Protocol Amending the Convention With Respect to

Taxes on Income and on Capital, U.S.-Can., September 26, 1980, as

Amended by the Protocols on June 14, 1983, March 28, 1984, and

March 17, 1995, S. Treaty Doc. 105-29 (1997) (Fourth Protocol),

which was signed on July 29, 1997, and entered into force on

December 16, 1997, made no modifications to articles XXIV and

XXIX of the U.S.-Canada Convention.

Neither the Third nor the Fourth Protocol references section

59 or TAMRA section 1012(aa)(2).
 - 11 -

III. Analysis

It is well established that, where a statute and a treaty

pertain to the same subject matter, they must be read so as to

give effect to both if at all possible. Whitney v. Robertson,

124 U.S. 190, 194 (1888). In Whitney, the Supreme Court

explained this general rule as follows:

By the Constitution a treaty is placed on the same
footing, and made of like obligation, with an act of
legislation. Both are declared by that instrument to
be the supreme law of the land, and no superior
efficacy is given to either over the other. When the
two relate to the same subject, the courts will always
endeavor to construe them so as to give effect to both,
if that can be done without violating the language of
either; but if the two are inconsistent, the one last
in date will control the other, provided always the
stipulation of the treaty on the subject is self-
executing. * * * [Id.]

If there is no conflict between a statute and a treaty, “the Code

and the treaty should be read harmoniously, to give effect to

each.” Pekar v. Commissioner, 113 T.C. 158, 161 (1999). If,

however, the statute and the treaty conflict, the last-in-time

rule requires that “the last expression of the sovereign will

* * * [controls].” Chae Chan Ping v. United States, supra at

600; Whitney v. Robertson, supra at 194.

Both petitioners and respondent argue that the double

taxation provisions of the U.S.-Canada Convention and section

59(a)(2) are not in conflict and can be read in harmony, thus

making the last-in-time rule inapplicable. Under petitioners’

interpretation, section 59(a)(2) and the U.S.-Canada Convention
 - 12 -

operate at different times, and consequently, section 59(a)(2)

does not limit petitioners’ ability to claim foreign tax credits

under the Convention. Thus, according to petitioners, taxpayers

first apply the foreign tax credits allowed under the Code

(sections 27 and 55(b)), taking into account the corresponding

limitations (e.g., section 59(a)(2)), to compute their tax

liability, and if double taxation remains, the Convention

provides tax credits to correct double taxation of the same

income by the United States and Canada. In essence, petitioners

conclude that the U.S.-Canada Convention prohibits any form of

double taxation on their 2003 income. Under respondent’s

interpretation, the U.S.-Canada Convention does not prohibit all

double taxation; rather the treaty expresses the intention of

Canada and the United States to avoid double taxation. Section

59(a)(2) reflects Congress’s intention that all U.S. taxpayers

with substantial incomes contribute to the cost of the services

provided by the Federal Government, and the U.S.-Canada

Convention does not prohibit this minimum contribution.

Alternatively, both parties argue that, even if we determine

there is a conflict, the last-in-time rule validates their

respective positions.

We have addressed whether article XXIV of the U.S.-Canada

Convention conflicts with the limitation on the AMT foreign tax

credit imposed by section 59(a)(2) in several cases. In Jamieson
 - 13 -

v. Commissioner, T.C. Memo. 1995-550, affd. without published

opinion 132 F.3d 1481 (1997), petitioners alleged that article

XXIV and section 59(a)(2) conflict. We assumed but did not

expressly decide that there was a conflict between the comparable

double taxation provisions of the U.S.-Canada Convention6 and

section 59(a)(2), and we applied the last-in-time rule to

conclude that section 59(a)(2) was the last expression of the

sovereign will. We rejected petitioners’ alternative argument

that the Third Protocol overrides section 59(a)(2) under the

last-in-time rule because the Third Protocol had not been

ratified by the United States and Canada and was not effective on

the relevant date.

In Kappus v. Commissioner, T.C. Memo. 2002-36, affd. 337

F.3d 1053 (D.C. Cir. 2003), and Price v. Commissioner, T.C. Memo.

2002-215, we addressed the question of whether the U.S.-Canada

Convention, as amended by the Third and Fourth Protocols, and

section 59(a)(2) conflict. In both cases the taxpayers argued

that section 59(a)(2) and the U.S.-Canada Convention conflicted

and that the Third and Fourth Protocols had the effect of

reestablishing the Convention as the last expression of the

sovereign will under the last-in-time rule. In both cases we

6
The Court cited Lindsey v. Commissioner, 98 T.C. 672
(1992), affd. without published opinion 15 F.3d 1160 (D.C. Cir.
1994), in support of its assumption. In Lindsey, we examined the
provisions regarding double taxation in the U.S.-Switzerland
Convention, and we held that they conflicted with sec. 59(a)(2).
 - 14 -

concluded that there was no conflict, and we held that relevant

U.S.-Canada Convention provisions and section 59(a)(2) could be

harmonized. Accordingly, we did not reach the taxpayers’

arguments under the last-in-time rule.7

The taxpayer in Kappus appealed this Court’s decision to the

Court of Appeals for the D.C. Circuit. In Kappus v.

Commissioner, 337 F.3d 1053 (D.C. Cir. 2003), the Court of

Appeals affirmed this Court’s decision for the Commissioner but

did so on different grounds. The Court of Appeals noted that the

question of whether a conflict existed between the U.S.-Canada

Convention and section 59(a)(2) was extremely close, but it

concluded that it did not need to resolve the question because

section 59(a)(2) was the last relevant provision under the last-

in-time rule. See S. African Airways v. Dole, 817 F.2d 119, 125-

126 (D.C. Cir. 1987); Jamieson v. Commissioner, supra. The Court

of Appeals stated that when a statute conflicts with a treaty,

“‘The duty of the courts is to construe and give effect to the

latest expression of the sovereign will.’” Kappus v.

Commissioner, 337 F.3d at 1057 (quoting Whitney v. Robertson, 124

7
Although petitioners attempt to avoid the result reached
in Kappus v. Commissioner, T.C. Memo. 2002-36, affd. 337 F.3d
1053 (D.C. Cir. 2003), and Price v. Commissioner, T.C. Memo.
2002-215, by arguing that the U.S.-Canada Convention does not
conflict with sec. 59(a)(2), the substance of petitioners’
argument is that, under the U.S.-Canada Convention, as amended by
the Third and Fourth Protocols, no double taxation is permitted.
In Kappus and Price, this Court rejected that argument.
 - 15 -

U.S. at 195). In deciding whether the U.S.-Canada Convention, as

amended by the Third and Fourth Protocols, or section 59(a)(2)

takes precedence as the latest expression of the sovereign will,

the Court of Appeals acknowledged that, although section 59(a)(2)

did not specifically deal with the relationship between its

requirement and tax treaty provisions, Congress made its will

known when it enacted section 7852(d)(1) and TAMRA section

1012(aa)(2). The Court of Appeals concluded that “TAMRA thus

made it crystal clear that Congress intended the 90% cap on the

AMT foreign tax credit to supercede any preexisting treaty

obligation with which it conflicted.” Kappus v. Commissioner,

337 F.3d at 1058. It then examined and rejected the taxpayer’s

argument that the Third and Fourth Protocols reestablished the

U.S.-Canada Convention as the last expression of the sovereign

will, holding that it could not read the protocols as implicitly

reviving original treaty provisions that had been superseded by

section 59(a)(2). Id. The Court of Appeals, quoting Johnson v.

Browne, 205 U.S. 309, 321 (1907), in which the Supreme Court

applied a canon of construction that repeals by implication are

not favored in the interpretation of a treaty, concluded that

“‘[a] later treaty will not be regarded as repealing an earlier

statute by implication unless the two are absolutely incompatible

and the statute cannot be enforced without antagonizing the

treaty.’” Id. at 1059. The Court of Appeals, applying this
 - 16 -

standard to the alleged conflict, held that the Third and Fourth

Protocols are not absolutely incompatible with section 59(a)(2)

“because their text neither bars its application nor modifies any

treaty provision that bars it” and that section 59(a)(2) prevails

over the U.S.-Canada Convention, as amended by the Third and

Fourth Protocols. Id.

This case is appealable, barring a stipulation to the

contrary, to the Court of Appeals for the D.C. Circuit. See sec.

7482(b)(1). Under the rule in Golsen v. Commissioner, 54 T.C.

742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971), we must

follow a Court of Appeals decision that is squarely in point

where appeal from our decision lies to that Court of Appeals. We

do not believe that the relevant facts and law as summarized in

the opinion of the Court of Appeals for the D.C. Circuit in

Kappus v. Commissioner, 337 F.3d 1053 (D.C. Cir. 2003), can

fairly be distinguished from the facts and law involved in this

case. Both cases involve the U.S.-Canada Convention, as amended

by the Third and Fourth Protocols. The issue presented in each

case is also the same--whether the taxpayers were liable for AMT

as a result of the application of the AMT foreign tax credit

limitation contained in section 59(a)(2). Consequently, like the

Court of Appeals in Kappus, we shall assume that a conflict

exists between the U.S.-Canada Convention and section 59(a)(2).

Applying the last-in-time rule, we hold that section 59(a)(2) is
 - 17 -

the last expression of the sovereign will and that it takes

precedence over the U.S.-Canada Convention to the extent there is

a conflict between them. TAMRA section 1012(aa)(2) makes it very

clear that Congress intended the limitation of section 59(a)(2)

to supersede existing treaty provisions prohibiting double

taxation. The U.S.-Canada Convention was one of those treaties.

Neither the Third nor the Fourth Protocol contains any provision

clearly indicating that Congress’s intention to ensure that

taxpayers with sufficient means should contribute a minimum

amount of tax to the United States had been superseded. See S.

Rept. 100-445, supra at 319.

We address one additional argument. Article XXIX contains a

saving clause that incorporates article XXIV as follows:

2. Except as provided in paragraph 3, nothing in
the Convention shall be construed as preventing a
Contracting State from taxing its residents (as
determined under Article IV (Residence)) and, in the
case of the United States, its citizens * * *, as if
there were no convention between the United States and
Canada with respect to taxes on income and on capital.

3. The provisions of paragraph 2 shall not affect
the obligations undertaken by a Contracting State:

(a) under * * * [Article] XXIV (Elimination of
Double Taxation) * * *

Petitioners point to article XXIX for the argument that, although

the United States is free to change its tax laws under paragraph

2, it is prevented by paragraph 3 from adopting new tax laws that

void or invalidate the double taxation provisions of article
 - 18 -

XXIV. In petitioners’ view, the exception to the saving clause

contained in paragraph 3 of article XXIX makes the final

elimination of any actual double taxation the “exclusive domain

and preemptive jurisdiction of the * * * provisions of article

XXIV”.

We reject petitioners’ argument pertaining to the

significance of the exception to the saving clause contained in

article XXIX of the U.S.-Canada Convention. Paragraph 3 of

article XXIX does nothing more than require the United States to

tax its citizens within the parameters of article XXIV.

Consequently, article XXIX merely reserves the issue of double

taxation to article XXIV which, as discussed above, must give way

to the provision of section 59(a)(2) as the most recent

expression of the sovereign will regarding the taxation of U.S.

citizens living in Canada.

IV. Conclusion

For the reasons set forth in this opinion and in Kappus v.

Commissioner, 337 F.3d 1053 (D.C. Cir. 2003), we hold that

section 59(a)(2) takes precedence under the last-in-time rule and

that petitioners are liable for $6,078 in AMT resulting from the

application of the section 59(a)(2) limitation, as respondent

determined.
 - 19 -

We have considered all the parties’ other arguments and, to

the extent not discussed above, conclude those arguments are

irrelevant, moot, or without merit.

To reflect the foregoing,

Decision will be entered

for respondent.