- 19 - of this issue turns on whether the Transfer Refund constitutes a "partial distribution", as defined by section 402(a)(5)(E)(v).16 A "partial distribution" is defined as "any distribution to an employee of all or any portion of the balance to the credit of such employee in a qualified trust; except that such term shall not include any distribution which is a qualified total distribution." Sec. 402(a)(5)(E)(v). Further, a partial distribution must be "payable as provided in clause (i), (iii), or (iv) of subsection (e)(4)(A) (without regard to the second sentence thereof)". Sec. 402(a)(5)(D)(i)(I).17 As relevant herein, section 402(e)(4)(A) provides that a distribution must be made either "(i) on account of the 16 The Transfer Refund would also qualify for tax-free rollover treatment if it were a "qualified total distribution", as defined by sec. 402(a)(5)(E)(i). In this case, petitioners do not contend that the Transfer Refund was a qualified total distribution. In any event, the Transfer Refund was not a qualified total distribution. See Wittstadt v. Commissioner, T.C. Memo. 1995-492, Humberson v. Commissioner, T.C. Memo. 1995- 470; Pumphrey v. Commissioner, T.C. Memo 1995-469; Dorsey v. Commissioner, T.C. Memo. 1995-97, affd. without published opinion 91 F.3d 129 (4th Cir. 1996); Hylton v. Commissioner, T.C. Memo. 1995-27. 17 In order to qualify as a "partial distribution", sec. 402(a)(5)(D)(i)(I) also requires that the distribution "is of an amount equal to at least 50 percent of the balance to the credit of the employee in a qualified trust". This additional requirement was not raised in the notice of deficiency as a reason for the adjustment to petitioners' income for 1989, see supra note 11, nor was it raised by respondent in either her trial memorandum or at trial in her counsel's opening statement.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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