Elaine S. Bennett - Page 11

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          regulation that suggests that an individual must be retired in              
          order to receive a "retirement distribution".  In other words,              
          there is nothing in the regulation to suggest that "all" means              
          "some".                                                                     
               D.  Case Law                                                           
               We also take note of the fact that petitioner's argument is            
          contrary to several decisions of this Court.  Thus, in Rodoni v.            
          Commissioner, 105 T.C. 29, 40 (1995), the Court had little                  
          difficulty in holding that the taxpayer was liable for the excise           
          tax under section 4980A, even though the taxpayer received a                
          lump-sum distribution from his corporation's profit sharing plan            
          in 1988 but continued to be employed by his corporation "until              
          the present".  Rodoni v. Commissioner, supra at 30.                         
               In Montgomery v. Commissioner, T.C. Memo. 1996-263, the                
          Court also held that the taxpayer was liable for the excise tax             
          under section 4980A.  There the taxpayer, a teacher employed by             
          the Hagerstown, Maryland Community College, received a                      
          distribution (in the form of a transfer refund from the Maryland            
          State Teachers' Retirement System) in 1990.  However, the                   
          taxpayer remained so employed at least through the time that the            

          (...continued)                                                              
          2085, 2481-2483.  It was subsequently renumbered by sec.                    
          1011A(g)(1)(A) of the Technical and Miscellaneous Revenue Act of            
          1988, Pub. L. 100-647, 102 Stat. 3342, 3479.  Because the                   
          applicable regulation does not reflect the statutory renumbering,           
          the regulation appears as sec. 54.4981A-1T, Temporary Qualified             
          Pension Plan Excise Tax Regs., 52 Fed. Reg. 46750 (Dec 10, 1987).           




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