Estate of Martin J. Machat, Deceased, Avril Giacobbi and Eric R. Sklar, Executors - Page 15

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                  Section 402(a)(1), as amended by section 314(c)(1) of the                             
            Economic Recovery Tax Act of 1981 (ERTA), Pub. L. 97-34, 95 Stat.                           
            172, 286, provides that a distributee is taxed on benefits under                            
            a qualified retirement plan in the tax year in which those                                  
            benefits are "actually distributed".  Prior to the 1981                                     
            amendment, section 402(a)(1) provided that amounts held in an                               
            employees' trust were taxable "when actually paid, distributed,                             
            or when made available to the distributee."6  The phrase "when                              
            made available" was deleted by ERTA section 314(c)(1) in order to                           
            alleviate a significant administrative burden for qualified plans                           
            which had undertaken to protect employees from taxation under                               
            section 402(a)(1) by developing a complex array of restrictions                             
            on an employee's right to make withdrawals from a qualified plan.                           
            Staff of Joint Comm. on Taxation, General Explanation of the                                
            Economic Recovery Tax Act of 1981, at 214 (J. Comm. Print 1981);                            
            see Clayton v. United States, 33 Fed. Cl. 628, 636 (1995) ("prior                           

                  6 Sec. 1.402(a)-1(a)(5), Income Tax Regs., which has not                              
            been amended to reflect the 1981 change, states:  "If pension or                            
            annuity payments or other benefits are paid or made available to                            
            the beneficiary of a deceased employee or a deceased retired                                
            employee by a trust described in section 401(a) which is exempt                             
            under section 501(a), such amounts are taxable in accordance with                           
            the rules of section 402(a) and this section."  Sec. 1.402(a)-                              
            1(a)(6)(i), Income Tax Regs., which has also not been amended to                            
            reflect the 1981 change, states:  "The total distributions                                  
            payable are includible in the gross income of the distributee                               
            within one taxable year if they are made available to such                                  
            distributee and the distributee fails to make a timely election                             
            under section 72(h) to receive an annuity in lieu of such total                             
            distributions."                                                                             





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