Kay A. Clawson - Page 5

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          appear that the facts in this case fit the mandatory provisions             
          of section 402(a)(9), calling for the taxation of the                       
          distribution here to petitioner as the alternate payee under a              
          QDRO.  Nevertheless, petitioner points to the language of the               
          QDRO itself, which provides that the tax on the amount                      
          distributed here was to be the liability of Mr. Willadsen.  We              
          think this is nothing more than an attempt by the parties to the            
          divorce to change by their private contract (albeit sanctified by           
          a State court QDRO) the impact of Federal income tax in a                   
          situation which is clearly provided for by the Code.  State law             
          may indeed determine the rights to and ownership of property, as            
          the divorce decree, settlement agreement and QDRO provide in this           
          case, Poe v. Seaborn, 282 U.S. 101 (1930), but the Internal                 
          Revenue Code will determine how those property rights, once                 
          established, shall be taxed.  Morgan v. Commissioner, 309 U.S. 78           
          (1940).  Where a distribution is made from a qualified plan to a            
          participant's former spouse pursuant to a QDRO, as here, such               
          former spouse is to be considered the "alternate payee" and taxed           
          on such distribution as the distributee; the subjective intention           
          of the former husband and wife in trying to agree to shift the              
          burden of taxation resulting from this transaction is not                   
          effective or relevant.  Hawkins v. Commissioner, 86 F.3d 982                
          (10th Cir. 1996), revg. on other grounds 102 T.C. 61 (1994).                
          Petitioner may have a cause of action against her former spouse             
          under the separation agreement and the QDRO, but such cause of              




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