Glen L. Wittstadt, Jr. and Lynne M. Wittstadt - Page 14

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               After the conclusion of trial, the Court directed the                   
          parties to file seriatim briefs.  See Rule 151(b).  Petitioners'             
          opening brief includes 8 pages of proposed findings of fact.  See            
          Rule 151(e)(3).  Respondent's answering brief includes 5 pages of            
          objections to petitioners' proposed findings of fact and 4 pages             
          of respondent's proposed findings of fact.  Id.  Petitioners'                
          reply brief includes 4-� pages of objections to respondent's                 
          proposed findings of fact.  Id.                                              
               I. The Memorandum Opinion                                               
               In T.C. Memo. 1995-492, filed October 11, 1995, the Court               
          decided the present case.  In our memorandum opinion, we rejected            
          petitioners' argument that petitioner's Transfer Refund had not              
          been received pursuant to Maryland State law but rather pursuant             
          to some administrative policy.  Regardless, we went on to hold               
          that the Transfer Refund was received on account of petitioner's             
          election to transfer from the Retirement System to the Pension               
          System and not on account of petitioner's retirement.  In so                 
          holding, we relied heavily on Hylton v. Commissioner, T.C. Memo.             
          1995-27, as well as a number of other "Transfer Refund cases"                

               Wittstadt to have retired.  Because Petitioner's                        
               retirement was a necessary condition precedent to his                   
               participation in the policy distribution option, the                    
               distribution by the Board to Petitioner was made "on                    
               account of" Petitioner Glenn L. Wittstadt's "separation                 
               from service," as those terms are used in I.R.C.                        
               Section 402(a)(5)(D).  Consequently, the distribution                   
               to Petitioner qualified for tax free treatment as                       
               provided for in Section 402(a)(5)(D).                                   

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