Harold E. Emmons and Anna Mae Emmons - Page 9

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               A defined benefit plan may contain a variable component                
          based on investment performance.  In this respect, a defined                
          benefit plan can, in part, resemble a defined contribution plan.            
          In such instances, section 414(k) creates a "hybrid" plan and               
          provides that the portion of the plan that resembles a defined              
          contribution plan will be treated as a defined contribution plan            
          for certain purposes.  As relevant herein, section 414(k)                   
          provides:                                                                   
                    (k) Certain Plans. -- A defined benefit plan which                
               provides a benefit derived from employer contributions which           
               is based partly on the balance of the separate account of a            
               participant shall --                                                   
                    (1) for purposes of section 410 * * * be treated as a             
               defined contribution plan,                                             
                    (2) for purposes of sections 72(d) * * * 411(a)(7)(A)             
               * * * 415 * * * and 401(m) * * * be treated as consisting of           
               a defined contribution plan to the extent benefits are based           
               on the separate account of a participant and as a defined              
               benefit plan with respect to the remaining portion of                  
               benefits under the plan, and                                           
                    (3) for purposes of section 4975 * * * be treated as a            
               defined benefit plan.  [Emphasis added.]                               
               In order to satisfy the reference to "separate account" in             
          section 414(k), the separate account must be more than a mere               
          bookkeeping account; it must maintain the characteristics of a              
          defined contribution plan, including the allocation of gains and            
          losses to a participant's account.  Malbon v. United States, 43             
          F.3d 466 (9th Cir. 1994); Montgomery v. United States, 18 F.3d              
          500 (7th Cir. 1994); see Green v. Commissioner, T.C. Memo. 1994-            
          340; but see Guilzon v. Commissioner, 985 F.2d 819 (5th Cir.                




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