John Walter Hodder and Sheila Laraine Hodder - Page 5




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          altered by the fact that the individual’s rights under the plan             
          are forfeitable.  See sec. 219(g)(5).                                       
               It is undisputed that an employer contribution was added to            
          a profit-sharing plan account in petitioner’s name during 1995.1            
          Petitioner argued at trial that he was not an active participant            
          because, according to his testimony, he entered into a verbal               
          agreement removing himself from participation in the written plan           
          when he commenced employment with Siesta; consequently, the                 
          contribution made to his account was made in error.  We need not            
          address this argument because we do not accept petitioner’s                 
          testimony.                                                                  
               First, and most importantly, petitioner’s testimony is                 
          directly contradicted by a letter dated November 25, 1997, which            
          he sent to the Internal Revenue Service.  In that letter he                 
          stated:  “The plan in question was not voluntary; I had no choice           
          in taking part in it.  If I had, I would have declined the                  
          benefit.”  Second, the individual who purportedly entered into              
          the verbal agreement with petitioner--the then president of                 
          Siesta--did not testify at trial and according to petitioner does           
          not remember entering into such an agreement.  Finally, the                 
          rationale petitioner provided for desiring to contract out of the           
          plan was not convincing; viz, that the nature of his job made               
          vesting in the plan unlikely.                                               



          1Nothing in the record indicates this plan was not a profit-                
          sharing plan described in sec. 401(a).                                      




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