James B. and Joan E. Murtaugh - Page 15

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          Income Tax Regs., 40 Fed. Reg. 1016 (Jan. 6, 1975), petitioners             
          are barred from electing 5-year averaging.8                                 
               Petitioners have also not demonstrated that they are                   
          eligible for capital gains treatment.  They have presented no               
          evidence or argument attempting to establish that they are                  
          entitled to capital gains treatment.  Prior to 1986, section                
          402(a)(2) of the Code as then in effect permitted capital gains             
          treatment for the portion of certain lump sum distributions from            
          pension plans that was attributable to plan participation before            
          1974.  The Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, 100           
          Stat. 2085, prospectively eliminated capital gains treatment for            
          lump sum distributions.  However, taxpayers who attained age 50             
          before January 1, 1986, could elect to have the pre-TRA 1986 law            
          apply.  See TRA 1986, sec. 1122(h)(3)(A), (C), 100 Stat. 2470-              
          2471.  Respondent concedes on brief that petitioner had reached             
          age 50 before January 1, 1986.  Thus, petitioner meets the                  
          threshold requirement of the transitional relief.  However,                 
          petitioner must still satisfy the requirements of the pre-TRA               
          1986 law in order to get capital gains treatment.  Under the pre-           
          TRA 1986 law, capital gains treatment was available only if the             
          taxpayer was an active participant in the plan prior to January             

               8 The same would be true if petitioners had attempted to               
          elect 10-year averaging.  Even if petitioners met the age                   
          requirement for the transitional relief provided in TRA 1986,               
          sec. 1122(h)(5), 100 Stat. 2471-2472, application of that                   
          provision would still require a valid election under sec.                   
          402(e)(4)(B).                                                               




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