Glen L. Wittstadt, Jr. and Lynne M. Wittstadt - Page 6

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          notice of deficiency, respondent determined that the Transfer               
          Refund was not eligible for tax-free rollover treatment under               
          section 402(a)(5).  Therefore, respondent determined that, under            
          sections 402(a)(1) and 72, the taxable portion of the Transfer              
          Refund was includable in petitioners' gross income.  As                     
          corollaries to this determination, respondent also determined               
          that petitioners are liable for:  (1) The 10-percent additional             
          tax under section 72(t), (2) the excise tax under section 4973 on           
          excess contributions to individual retirement accounts, and (3)             
          the excise tax under section 4980A for excess distributions from            
          qualified retirement plans.7                                                
                                   OPINIONOPINION                                     
          I. Rollover Issue                                                           
               Petitioners contend that the Transfer Refund received by               
          petitioner from the Retirement System was paid "on account of               
          [petitioner's] separation from the service" within the meaning of           
          section 402(e)(4)(A)(iii).  Respondent contends to the contrary.            
          The parties agree that our resolution of this matter will dictate           
          whether or not the Transfer Refund qualifies as a partial                   
          distribution eligible for rollover treatment under section                  
          402(a)(5)(D) and consequently whether or not petitioners are                
          liable for the deficiency that respondent determined.                       



          7 See supra note 3 regarding respondent's concession as to                  
          petitioner Lynne M. Wittstadt.                                              




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