- 9 - 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 thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011