- 6 -
provision, a distribution to an "alternate payee" under a QDRO is
excepted from the additional tax on early distributions. Section
402(e)(1)(A) provides that an "alternate payee" who is the spouse
or former spouse of the plan participant shall be treated as the
distributee of any distribution or payment made to the "alternate
payee" under a "qualified domestic relations order" as defined in
section 414(p). Therefore, a distribution made to such an
alternate payee under a QDRO will be taxable to that alternate
payee, and not to the plan participant, because section
402(e)(1)(A) treats the alternate payee as the distributee.
But it is not the distribution to his wife, the alternate
payee, that is under consideration here. The distribution in
dispute is the distribution to petitioner himself. Petitioner is
a distributee, the plan participant or beneficiary who, under the
plan, is entitled to receive the distribution. See Darby v.
Commissioner, 97 T.C. 51, 58 (1991); Estate of Machat v.
Commissioner, T.C. Memo. 1998-154; Smith v. Commissioner, T.C.
Memo. 1996-292. As petitioner is not an "alternate payee", he
may not look to section 72(t)(2)(C) for relief.
It does not appear that any of the statutory exceptions to
the application of section 72(t) apply in this case, and
petitioner has not suggested otherwise.
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011