- 4 -
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).
Page: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011