- 5 - QDRO, are not taxable to the plan participant, but are instead, taxable to the former spouse/alternate payee as if he or she were the plan participant.4 Conversely, a domestic relations order that fails to satisfy the requirements of section 414(p) is not a QDRO, and, consequently, the exception provided in section 402(a)(9) is inapplicable to such orders. In such a situation, any distribution made from the plan will be taxable to the plan participant under section 402(a)(1). In the instant case, respondent finds herself in a precarious position, between two former spouses of whom one is a party to this litigation, the other is not. The question in dispute is which of the former spouses ultimately will be liable for the tax attributable to the subject distributions. The eventual resolution of the QDRO issue will determine whether 4 Sec. 401(a)(13)(A) was added by the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-406, sec. 1021(c), 88 Stat. 829, 935, to require tax-qualified plans to provide "that benefits provided under the plan may not be assigned or alienated". ERISA, sec. 514(a), 29 U.S.C. sec. 1144(a) (1988), provides that the labor title of ERISA preempts State law. Consequently, after the enactment of ERISA, it was unclear whether this preemption provision applied to prohibit the attachment or assignment of pension plan benefits under State community property and family support laws. Congress enacted the Retirement Equity Act of 1984 (REA), Pub. L. 98-397, 98 Stat. 1426, to clarify the application of ERISA antialienation provisions to State family support laws and community property laws. See S. Rept. 98-575, at 19 (1984), 1984-2 C.B. 447, 456. REA provided new rules for the treatment of certain domestic relations orders, requiring the distribution of all or part of a participant's benefits under a qualified plan to an alternate payee. Sec. 204(b) of REA, 98 Stat. 1445, added sec. 414(p), which defines a QDRO. Sec. 401(a)(13)(B) provides that the creation, recognition, or assignment of an alternate payee's right to plan benefits under a QDRO does not violate the antialienation provisions of ERISA and sec. 401(a)(13)(A).Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011