Randolph S. Simpson I - Page 7

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               Although petitioner did not allege or contend that the                 
          $17,900 was paid pursuant to a QDRO, petitioner in any event does           
          not qualify for the section 72(t)(2)(C) exception to the                    
          additional tax.  Although the divorce decree is a domestic                  
          relations order, it is not a QDRO.  Rather than recognizing an              
          alternate payee with respect to petitioner’s qualified plan, the            
          decree divested Ms. Simpson of any rights to such property and              
          deemed that property to be petitioner’s sole and separate                   
          property.  Sec. 414(p)(1)(A).  Because no alternate payee was               
          named in the divorce decree, the decree was not a QDRO.                     
               Moreover, the distribution of funds from petitioner’s                  
          qualified plan was not made to an alternate payee as required by            
          section 72(t)(2)(C).  By contrast, the funds were disbursed by              
          the plan administrator directly to petitioner.  The Court rejects           
          petitioner’s argument that, because he used funds received in the           
          plan distribution to pay Ms. Simpson, she should be responsible             
          for a proportionate share of the additional tax.  Petitioner’s              
          argument ignores the definitional elements of alternate payee in            
          section 414(p)(8), and he points to no legal authority to support           
          his position.  As previously noted, Ms. Simpson was not an                  
          alternate payee.  Bougas v. Commissioner, T.C. Memo. 2003-194.              
          Petitioner does not fall within the section 72(t)(2)(C) exception           
          to the section 72(t) additional tax on an early distribution from           
          a qualified retirement plan, nor does he contend that he                    

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