5 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 ofPage: Previous 1 2 3 4 5 6 Next
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