Lee E. Seidel - Page 10

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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.                                                         
               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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