4
Within the broad rubric of section 61(a), which defines
gross income as all income from whatever source derived, the law
is clear that a distribution from a qualified retirement plan1 is
generally taxed to the distributee and includable in income in
the year distributed. Specifically, section 402(a)(1), as it
applies to the facts in the instant case provides:
Except as provided in paragraph (4) [not here
relevant], the amount actually distributed to any
distributee by any employees' trust described in
section 401(a) which is exempt from tax under section
501(a) shall be taxable to him, in the year in which so
distributed, under section 72 * * *
More specifically, section 402(a)(9) provides:
For purposes of subsection (a)(1) and section 72, any
alternate payee who is the spouse or former spouse of
the participant shall be treated as the distributee of
any distribution or payment made to the alternate payee
under a qualified domestic relations order (as defined
in section 414(p)).[2]
There is no dispute between the parties here, that the
instrument in question was a QDRO within the meaning of section
402(a)(9). There is also no dispute that petitioner was the
alternate payee under the provisions of the separation agreement
and the QDRO. The parties have also agreed that the Ohio court
order of March 1990 in this case qualifies as a QDRO. It would
1 There is no dispute between the parties that the subject
plans are "qualified plans" within the meaning of the Code.
2 The above quoted section of the Code was replaced by
section 402(e) under the provisions of Unemployment Compensation
Amendments of 1992, Pub. L. 102-318, sec. 521, 106 Stat. 291,
308, for years after Dec 31, 1992. For the year 1990, which is
here in issue, sec. 402(a)(9) was in effect.
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