Lear Eye Clinic, Ltd., et al. - Page 14

                                                   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 the                                 




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