John E. and Concetta Lozon - Page 13

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          distributed to any distributee by any employees' trust described            
          in section 401(a)".  Respondent argues that petitioners cannot be           
          proper distributees of the trusts since petitioners are                     
          independent contractors not employees.  In respondent's view the            
          trusts would violate the "exclusive benefit rule" provided for in           
          section 401(a)(2) if they included nonemployees such as                     
          petitioners.  While agreeing that the pension plan and                      
          corresponding trust were qualified6 for the years in issue and              
          the plans are not parties to this action, respondent nevertheless           
          argues that petitioners are not "qualified participants" in                 
          either plan.                                                                
               Respondent argues that petitioners should be taxed pursuant            
          to section 83(a), which taxes property transferred to an employee           
          or an independent contractor in connection with the performance             
          of services.  In his reply brief, for the first time, respondent            
          contends that the economic benefit doctrine provides a legal                
          basis for taxing petitioner.                                                
               Respondent further argues that petitioners may not be                  
          independent contractors for income tax deduction purposes and               
          employees for pension plan purposes.  Respondent argues that                
          petitioners' reliance on Butts v. Commissioner, supra, and Ware             
          v. Commissioner, supra, is misplaced and that their reading of              


               6  Petitioners did not request such a finding of fact as to            
          the profit sharing fund.  Respondent, however, does refer to "the           
          qualified plans at issue" on brief.                                         




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