Rhett B. and Sandra L. Ross - Page 9

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                                       OPINION                                        
          I. Rollover Issue                                                           
               The pivotal issue in this case is whether petitioner's                 
          Transfer Refund qualifies for tax-free rollover treatment under             
          section 402(a)(5). The resolution of this issue turns on whether            
          the Transfer Refund constitutes either a "qualified total                   
          distribution", as defined by section 402(a)(5)(E)(i), or a                  
          "partial distribution", as defined by section 402(a)(5)(D)(i).              
               Petitioners concede that the Transfer Refund does not                  
          qualify as a partial distribution under section 402(a)(5)(D).  In           
          view of the fact that the Transfer Refund was not received on               
          account of death, disability, or separation from the service, but           
          rather on account of petitioner's election to transfer from the             
          Retirement System to the Pension System, petitioners' concession            
          is required by both statutory and case law.  See sec.                       
          402(a)(5)(D)(i)(I), (e)(4)(A); Wittstadt v. Commissioner, T.C.              
          Memo. 1995-492, and cases cited therein; Conway v. United States,           
          76 AFTR 2d 95-6918 (D. Md. 1995).                                           
               On the other hand, petitioners do not concede that the                 
          Transfer Refund does not constitute a qualified total                       
          distribution.  However, they have not actively argued this issue,           
          but rather have essentially reserved the right to pursue it on              
          appeal.  In this regard, petitioners recognize that the existing            
          case law of this Court, as well as the U.S. District Court for              
          the District of Maryland, supports the conclusion that the                  





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