Mark J. Fuhrman & Mary A. Fuhrman - Page 5

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               The parties focus on petitioner's employment relationship              
          with the State of Nebraska, and we do likewise.  Petitioners                
          apparently agree that the fund constitutes a pension plan within            
          the meaning of section 219(g), and to the extent that petitioner            
          was an employee of State of Nebraska, he was an active                      
          participant in that plan.                                                   
               Although the term "employee" is defined for other purposes             
          throughout the Internal Revenue Code, see e.g., section 3401(c),            
          Congress did not provide a statutory definition for purposes of             
          section 219.  However, this Court and the Court of Appeals for              
          the Eighth Circuit, where appeal lies in this case, focused                 
          precisely on this point in Porter v. Commissioner, 88 T.C. 548              
          (1987), revd. 856 F.2d 1205 (8th Cir. 1988), affd. on other                 
          grounds sub nom. Adams v. Commissioner, 841 F.2d 62 (3d Cir.                
               In Porter v. Commissioner, supra, we considered whether for            
          purposes of section 219(g), Federal judges appointed under                  
          Article III of the United States Constitution (Federal judges)              
          were employees of the United States.  Acknowledging that Congress           
          used the term "employee" in different ways throughout the                   
          Internal Revenue Code, we decided that for purposes of that                 
          section Congress intended the common-law definition of the term             
          to apply.  Id. at 553-554.  After reviewing the authority and               
          function of Federal judges and the relevant common-law principles           
          typically considered in resolving issues relating to the                    

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