14 Our conclusion is buttressed by case law addressing separation from the service in which we have looked to the substance of the employment relationship rather than the formal or technical change in that relationship. In Burton v. Commissioner, supra, Burton was a practicing physician. Burton incorporated his medical practice and was the sole shareholder of the professional association. The professional association maintained a qualified pension plan, and Burton was a participant in that plan. Burton eventually liquidated the professional association. Immediately after the liquidation, Burton resumed his medical practice in the form of a sole proprietorship. The pension plan was terminated, and its assets were distributed to the participants. Burton reported the distribution using the 10-year forward averaging method which had the effect of reducing the tax impact in the year of the distribution. The Commissioner argued that Burton's change in status from a sole shareholder-employee to sole proprietor was merely a change in form and that there had been no separation from the service within the meaning of section 402(e). The Commissioner reasoned that since there was no separation from the service, the 10-year forward averaging method was not available to Burton. We held that Burton's change of status from that of an employee of a professional association to that of a sole proprietor was not a "separation from the service" within thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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