- 9 - 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 forPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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