John E. and Concetta Lozon - Page 14

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          section 401(c) as supporting dual classification is erroneous.              
          Finally, respondent argues that the separation from service cases           
          are irrelevant to the case at hand.                                         
               3.   Analysis                                                          
               Allstate included Mrs. Lozon in their pension plan and the             
          profit sharing fund because they considered her to be an                    
          employee.7  We held, supra, that petitioners' relationship to               
          Allstate was that of an independent contractor and not that of an           
          employee.  Petitioners argue that Mrs. Lozon can, nevertheless,             
          avoid current taxation on amounts vested in the pension plan                
          because respondent agrees that the pension plan was qualified               
          under section 401 and the trust was exempt under section 501(a).            
          Respondent wants to remove the "bad apples" from Allstate's                 
          pension plan "barrel" without advocating that the plans                     
          themselves be disqualified.  As respondent states on brief, "The            
          qualified plans at issue defer the current receipt of income of             
          employee Agents of Allstate, but cannot defer income of non-                
          employee independent contractors."  Respondent, however, does not           
          suggest a statutory framework to remove the bad apples (the                 
          people who have been mistakenly included in the pension plan).              
               Respondent determined that the contributions made on behalf            
          of Mrs. Lozon should be income to her when vested.  Petitioners             

               7  The contributions made to the pension plan on behalf of             
          Mr. Lozon are not at issue because he was not vested during the             
          years in issue.  Mr. Lozon did not participate in the profit                
          sharing fund.                                                               




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