- 14 -
property law, Poe v. Seaborn, supra, applies, not Lucas v. Earl,
supra.
D. Whether Section 402 or QDRO Rules Govern This Case
Respondent argues that the payments are tax free to
petitioner’s former spouse under section 402(a)10 (and, we
assume, contends inferentially that they are taxable to
petitioner) because the payments were not distributions from her
former husband’s pension plan.11 Section 402(a) provides how
distributions made from a qualified trust under a qualified
pension plan are taxed. No distributions from a qualified trust
were made in this case. Thus, contrary to respondent’s argument,
by its terms section 402 does not apply to this case.12
We did not discuss section 402 in Eatinger v. Commissioner,
T.C. Memo. 1990-310, when we held that the nonemployee spouse was
10 Sec. 402(a) provides:
SEC. 402(a). Taxability of Beneficiary of Exempt Trust.--
Except as otherwise provided in this section, any
amount actually distributed to any distributee by any
employees’ trust described in section 401(a) which is
exempt from tax under section 501(a) shall be taxable
to the distributee, in the taxable year of the
distributee in which distributed, under section 72
(relating to annuities).
11 Because petitioner’s former spouse is not a party in this
case, we do not consider here how she might be taxed on the
payments at issue.
12 Respondent does not cite or rely on Karem v.
Commissioner, 100 T.C. 521 (1993). Unlike the instant case,
Karem involved taxation of a distribution from a pension plan.
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