Jerry L. Burton - Page 10

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            was terminated on March 8, 1991.  During that same month                                     
            petitioner asked the Fluor Daniel plan administrator to                                      
            distribute to him--petitioner--the entire plan balance.  In mid-                             
            May of that year the plan administrator acknowledged petitioner's                            
            request and reported to him the amounts to be distributed based                              
            upon a March 31 valuation date.  Petitioner received two checks,                             
            both dated May 24, 1991, which terminated his interest in the                                
            plan.  It is not clear why the plan administrator agreed to this                             
            termination of petitioner's entire interest in the plan; one                                 
            possibility is that the termination of petitioner's interest was                             
            permissible as being related to his separation from service with                             
            Fluor Daniel.  In any event, since the plan proceeds were                                    
            distributed to petitioner and not to Mrs. Burton, and in advance                             
            of the Decree (which was dated June 11, 1991), it cannot be                                  
            argued that the distribution was made by the plan administrator                              
            to an alternate payee in response to the Decree.                                             
                  Rodoni v. Commissioner, 105 T.C. 29 (1995), involved a                                 
            similar situation.  The domestic relations order in dispute in                               
            that case was not executed until after the taxpayer had received                             
            a lump-sum distribution terminating his interest in a profit                                 
            sharing plan.  We held that the domestic relations order in that                             
            case could not create or recognize rights that no longer existed                             
            at the time of the order.  Id. at 35.  The same is true in this                              

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