- 8 - II. The Proper Tax Treatment of the 1998 Distribution Gross income includes income from whatever source derived, including income from pensions and annuities. Sec. 61(a)(9), (11). A distribution from a qualified retirement plan is includable in the distributee’s gross income in the taxable year of distribution. Sec. 402(a). The distribution is includable in gross income in the same manner as an annuity under section 72, id., unless the distribution qualifies for special tax treatment under section 402(d) or is excluded under another provision. Petitioner argues that, when he received the 1998 distribution, Mrs. Barkley became entitled to one-half of the distribution under California community property law. Although petitioner admits that “both halves” of the 1998 distribution are includable in gross income under section 402(a), and that no part of section 402(d) is applicable to his half of the 1998 distribution, petitioner contends that under section 402(d)(3), he is entitled to deduct Mrs. Barkley’s community property interest, equal to half of the 1998 distribution, from his gross income. Petitioner reasons that, because section 402(d)(4)(E) provides that “The provisions of this subsection, other than paragraph (3), shall be applied without regard to community property laws”, all provisions of section 402(d) relating to computing and qualifying for lump-sum averaging “disappear” with regard to Mrs. Barkley’s community property interest in the 1998Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011