Michael J. Barkley - Page 15

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          argues, no part of the distribution is exempt from the 10-percent           
          additional tax.                                                             
               We agree with respondent that petitioner’s distribution does           
          not qualify for any exception to the 10-percent additional tax,             
          and we reject petitioner’s argument that Mrs. Barkley was a                 
          participant for purposes of section 72(t)(5).  The term                     
          “participant” is defined by Employee Retirement Income Security             
          Act of 1974 (ERISA),9 Pub. L. 93-406, sec. 3(7), 88 Stat. 834, 29           
          U.S.C. sec. 1002(7) (2000) as:                                              
               any employee or former employee of an employer, or any                 
               member or former member of an employee organization,                   
               who is or may become eligible to receive a benefit of                  
               any type from an employee benefit plan which covers                    
               employees of such employer or members of such                          
               organization, or whose beneficiaries may be eligible to                
               receive any such benefit.                                              
          See also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117            
          (1989) (the Supreme Court, quoting Saladino v. I.L.G.W.U. Natl.             
          Retirement Fund, 754 F.2d 473, 476 (2d Cir. 1985), defined                  
          “participant” for ERISA purposes to mean “‘employees in, or                 
          reasonably expected to be in, currently covered employment’”).              
               Mrs. Barkley was not an employee of Pacific Bell.                      
          Petitioner was the Pacific Bell employee and plan participant.              

               9The definitions in tit. I of the Employee Retirement Income           
          Security Act of 1974, Pub. L. 93-406, sec. 4(a), 88 Stat. 839, 29           
          U.S.C. sec. 1003(a) (2000), apply to any employee benefit plan              
          maintained by an employer engaged in interstate commerce, whether           
          or not the plan is a qualified plan for purposes of the Internal            
          Revenue Code.                                                               

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