- 21 -
for tax-free rollover treatment under section 402(a)(5) because
the Transfer Refund was not made on account of petitioner's
retirement as a teacher, but rather on account of petitioner's
election to transfer from the Retirement System to the Pension
System. Respondent consistently maintained this position
throughout the court proceeding until respondent conceded the
case on November 8, 1996, in the Court of Appeals.
D. Petitioners' Contentions
Petitioners contend that respondent's position was
unreasonable for at least three reasons:
First, petitioners contend that respondent's position was
contrary to congressional intent "to preserve retirement funds".
Second, petitioners contend that respondent should not have
opposed petitioners' motion for summary judgment, but rather
should have permitted the Court to adjudicate the disputed issues
in this case in a summary fashion. If the Court had done so,
then, so the argument goes, petitioners would have been spared
the cost of trial.13
Third, petitioners contend that respondent was unreasonable
in pursuing collection of the assessed deficiencies, at least
after the Court of Appeals decided Adler v. Commissioner, 86 F.3d
378 (4th Cir. 1996).
13 Petitioners acknowledge that if the Court had rendered
summary judgment for respondent (even though respondent never
filed any cross-motion for summary judgment), petitioners would
not have been spared the cost of appeal.
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