John Michael Dunkin - Page 15

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          taxable on her share of retirement benefits.13  Instead, we based           
          our decision on the former spouse’s ownership of retirement                 
          rights under California community property law and the principle            
          that property is taxed to its owner.  See Poe v. Seaborn, supra.            
          We believe the same approach is appropriate here.                           
               An order to a retirement plan to pay an early retirement               
          benefit (i.e., a retirement benefit payable to the nonemployee              
          spouse before the employee spouse retires) can be a QDRO.  Sec.             
          414(p)(4).  Respondent contends that petitioner could have                  
          obtained a QDRO providing an early retirement benefit to his                
          former spouse under which she would have been taxable on the                
          payments at issue.                                                          
               Because domestic relations are preeminently matters of State           
          law, Congress rarely intends to displace State authority in this            
          area.  Mansell v. Mansell, 490 U.S. 581, 587 (1989).  Even if               
          petitioner could have obtained an early retirement QDRO,                    
          respondent does not contend that Federal law prohibits the                  
          arrangement under California community property law that was made           
          in this case; i.e., petitioner paid his former spouse the benefit           




               13  The pension plan in Eatinger v. Commissioner, T.C. Memo.           
          1990-310, was not a qualified trust because it was a Government             
          plan, and, at that time, Government retirement plans were not               
          qualified plans.  Karem v. Commissioner, supra at 526 n.4; see H.           
          Rept. 101-247, 1443 (1989).                                                 





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