John U. Fazi and Sylvia Fazi - Page 12

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            plan.  The Court referred to the merger as a "pooling" of the two                              
            plans.  Id. at 693.  The Court did not hold, or even mention, if                               
            the merged amount constituted a contribution.                                                  
                  In our case, if the merged amount were a contribution by the                             
            corporation, then plan 1 would have been grossly overfunded for                                
            1986.  The parties have stipulated that the plans were in                                      
            operational compliance; i.e., not overfunded.                                                  
                  As respondent acknowledges, the merger, or pooling, of an                                
            exempt trust into a nonexempt trust is not a contribution.                                     
            Therefore, a plan merger is not a contribution that creates                                    
            income for the beneficiaries of a surviving trust.  Mr. Fazi did                               
            not receive a net increase in his account balances; his account                                
            balance in plan 1 increased by the same amount that his account                                
            balance in plan 2 decreased.  Contrary to respondent's claims,                                 
            the Court in Fazi I merely accepted respondent's incorrect                                     
            concession that the merged amount was not taxable in 1987; we did                              
            not hold that the merged amount was a contribution to the                                      
            surviving plan.7                                                                               


            7  In Fazi I, 102 T.C. at 703 n.7, we stated:  "Further, respondent points out                 
            that the merging of plan 2 into plan 1 during 1986 would be taxable in 1986,                   
            rather than in 1987 as determined in the notice of deficiency."  (Emphasis                     
            added.)  We further stated:                                                                    
                  respondent has conceded that the taxable distribution for 1987                           
                  should not include those contributions made during 1985 or 1986                          
                  because they would be taxable to petitioners in the years                                
                  contributions were made to an unqualified trust and not at the                           
                  time of distribution.  Additionally, because the amount in plan 2                        
                  was merged into plan 1 during May 1986, a year in which the plans                        
                  and the trusts were unqualified, that amount would likewise be                           
                  taxable in 1986, rather than 1987.  [Id. at 713; emphasis added.]                        



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