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Petitioners further argue that they could have had dual
status: Independent contractors for income tax purposes and
employees for pension plan purposes. Petitioners claim "In
essence, this Court has already considered the pension issue
[citing Butts v. Commissioner, supra] and, as dicta, agreed that
these NOA's may be employees 'for pension and fringe benefit
purposes' although they were independent contractors for the
expense deduction purposes." Petitioners cite Ware v. United
States, 850 F. Supp. 602 (1994), affd. 67 F.3d 574 (6th Cir.
1995), as supporting the dual status concept. As further support
for their dual status argument, petitioners argue that sections
7701(a)(20) and 401(c) allow full-time life insurance agents to
be treated as independent contractors for some purposes but as
employees for pension purposes and that cases involving
separation from service provide additional support.
Petitioners further argue that section 83 does not provide
support for taxing them (as respondent argues) since section
83(e) provides that section 83 shall not apply to "a transfer to
or from a trust described in Section 401(a)".
2. Respondent's Arguments
Respondent argues that petitioners cannot use section 402(a)
to defer recognition of income since they are not employees of
Allstate. Section 402(a)(1) refers to "the amount actually
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