Nick Allan Palermino - Page 4

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          Petitioner did not include the $5,582 distribution as income on             
          his 1998 Form 1040EZ.  In the notice of deficiency, respondent              
          determined that the $5,582 distribution was includable in                   
          petitioner’s 1998 gross income.                                             
                                     Discussion                                       
               For a retirement plan to qualify under section 401(k),                 
          amounts held by the plan which are “attributable to employer                
          contributions made pursuant to the employee’s election”3 are not            
          distributable earlier than “separation from service, death, or              
          disability, * * * the attainment of age 59�, or * * * hardship of           
          the employee”.  Sec. 401(k)(2)(B)(i).  If a distribution to the             
          employee is made, the amount actually distributed “shall be                 
          taxable to the distributee, in the taxable year of the                      
          distributee in which distributed, under section 72”.  Sec.                  
          402(a).                                                                     
               Respondent levied on petitioner’s section 401(k) account,              
          and the compliance with the levy constituted a distribution,                
          albeit involuntary, from that account to the benefit of                     
          petitioner.  See Larotonda v. Commissioner, 89 T.C. 287 (1987).             
               Preretirement distributions from a qualified retirement plan           
          are treated as nonannuity distributions.  See sec. 72(e)(1).  If            




          3   For purposes of sec. 401(k), “elective contributions * * *              
          are treated as employer contributions.”  Sec. 1.401(k)-                     
          1(a)(4)(ii), Income Tax Regs.                                               




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