- 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
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