James Joseph Timmerman - Page 9




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                    self-serving statements as our only evidence.  The facts                                                                                               
                    presented before us leave us no other choice but to find that the                                                                                      
                    receipt of the plan’s total net distribution is a lump sum                                                                                             
                    distribution from Martin’s plan.4                                                                                                                      
                              Petitioner’s final argument is that he received the total                                                                                    
                    distribution of the plan as the personal representative of                                                                                             
                    Martin’s estate and not in the capacity of the sole beneficiary.                                                                                       
                    We find no merit in petitioner’s argument.  Under New Jersey law,                                                                                      
                    a pension plan, like an insurance policy, is a nontestamentary                                                                                         
                    asset, and therefore generally not subject to administration                                                                                           
                    under a probate estate.  See Czoch v. Freeman, 721 A.2d 1019,                                                                                          
                    1024 (N.J. Super. Ct. App. Div. 1999).  We find that petitioner                                                                                        
                    received the total plan amount in his individual capacity as the                                                                                       
                    beneficiary and not the personal representative of Martin’s                                                                                            
                    estate.                                                                                                                                                


                              4         The pertinent part of sec. 402(d)(4)(A) states:                                                                                    
                              (A) Lump sum distribution.  For purposes of this                                                                                             
                              section and section 403, the term “lump sum                                                                                                  
                              distribution” means the distribution or payment within                                                                                       
                              1 taxable year of the recipient of the balance to the                                                                                        
                              credit of an employee which becomes payable to the                                                                                           
                              recipient-                                                                                                                                   
                                        (i) on account of the employee’s death,                                                                                            
                                                 **        *         *         *         *         *    *                                                                 
                              from a trust which forms a part of a plan described in                                                                                       
                              section 401(a) and which is exempt from tax under                                                                                            
                              section 501 or from a plan described in section 403(a).                                                                                      
                              * * *                                                                                                                                        





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