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does not offer an exclusive definition of qualified employer
plans, rather, it illustrates one example of when a plan will be
treated as a qualified employer plan. Under the plain language
of section 4980A(e)(2), a qualified employer plan includes a plan
which, at any time, has been determined by the Commissioner to be
a qualified plan; i.e., by means of a determination letter, as in
the present case. Thus, the fact the Retirement System is a
governmental plan does not preclude it from satisfying the
definition of a qualified employer plan.
Petitioners also contend that the amendments made to the
Retirement System in 1984 violate various provisions of section
401(a) and terminated its qualified status so that the Retirement
System was not a qualified employer plan at the time it issued
petitioner's Transfer Refund in 1990. Petitioners argue that the
excise tax under section 4980A should not apply to petitioner's
Transfer Refund unless the Retirement System was a qualified
employer plan at the time that it distributed the Transfer
Refund.
Respondent contends that, for purposes of section 4980A(a),
the qualified status of the Retirement System at the time of
petitioner's distribution is irrelevant. Specifically,
respondent contends that, under the plain language of section
4980A(e)(2), once the Commissioner determines that a plan is a
qualified employer plan, the plan's status for purposes of
section 4980A is not changed by subsequent events that might
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