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which she did not report on her 1999 income tax return, from
petitioner’s CWSC 401(k) plan. Ms. Seidel’s case and this case
were tried separately on the Court’s San Francisco, California,
Trial Session beginning on March 1, 2004. On March 31, 2005, we
filed an opinion in Ms. Seidel’s case. Seidel v. Commissioner,
T.C. Memo. 2005-67.
Discussion
As a general rule, the determinations of the Commissioner in
a notice of deficiency are presumed correct, and the taxpayer
bears the burden of proving the Commissioner’s determinations in
the notice of deficiency to be in error. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). We decide the issue in this
case without regard to the burden of proof. Accordingly, we need
not decide whether the general rule of section 7491(a)(1) is
applicable in this case. See Higbee v. Commissioner, 116 T.C.
438 (2001).
Taxability of Section 401(k) Distribution Pursuant to QDRO
As previously stated, because petitioner took the position
that Ms. Seidel should include the full amount of the
distribution in income and Ms. Seidel took the position that
petitioner should include one-half of the distribution in income,
respondent issued notices of deficiency to petitioner and Ms.
Seidel to avoid the possibility of being in a whipsaw position.
Thus, respondent asserted that petitioner was responsible for
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