Jerry L. Burton - Page 6

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                  We must decide whether the Decree is a qualified domestic                              
            relations order (QDRO) within the meaning of section 414(p), thus                            
            relieving petitioner of liability for tax pursuant to section                                
            402(a)(9) on the $156,099.46 portion of the lump-sum distribution                            
            used to satisfy his mortgage and pay his ex-wife, and the $17,676                            
            additional tax under section 72(t).  For the reasons which                                   
            follow, we hold that the Decree does not constitute a QDRO.                                  
                  Ordinarily, any funds distributed from an exempt employees'                            
            trust (under a tax qualified employees' plan) are taxable to the                             
            plan participant or beneficiary who is entitled to receive the                               
            distribution under the plan.  Darby v. Commissioner, 97 T.C. 51,                             
            58 (1991).  However, section 402(a)(9) (now section 402(e)(1)(A))                            
            states an exception to this general rule, providing that an                                  
            alternate payee (who is the spouse or former spouse of the plan                              
            participant) shall be treated as the distributee of any                                      
            distribution or payment made to such payee under a QDRO.                                     
            Accordingly, the tax liability for the distribution from the                                 
            Fluor Daniel retirement accounts will be allocated either to                                 
            petitioner or to Mrs. Burton depending upon whether the Decree                               
            meets the statutory definition of a QDRO.                                                    

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