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argues that the Form 1099-R provides sufficient evidence to
sustain a determination that petitioner was both eligible for and
an active participant in CDI’s retirement plan. We agree.
Section 1.219-2(e), Income Tax Regs., does not address a
taxpayer’s eligibility to receive benefits under a qualified
retirement plan; rather it concludes that mere contribution
creates active participant status. Petitioner has failed to
establish that participation in the plan was voluntary and that
he elected not to participate. Based on the scant evidence in
the record, we find that petitioner was eligible and thus, was an
active participant within the meaning of section 219(g) during
the year in issue.
Petitioner was accruing benefits, albeit unvested, under
CDI’s retirement plan during 1997. Regardless of whether
petitioner’s rights vested and despite the fact that his
contributions were returned to him upon the termination of his
employment in 1997, petitioner was an active participant in a
qualified retirement plan in 1997. Hildebrand v. Commissioner,
683 F.2d 57, 58 (3d Cir. 1982), affg. T.C. Memo. 1980-532; Eanes
v. Commissioner, 85 T.C. 168, 170-171 (1985).
While the result to petitioner appears harsh, we cannot
ignore the flush language of the statute and, in effect, rewrite
the statute to achieve what seems to be a more equitable result.
See Eanes v. Commissioner, supra at 171. “Whether and to what
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