James Curtis Barrett - Page 12

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          Emmons v. Commissioner, T.C. Memo. 1996-265.  Furthermore, “the             
          employer bears the risk of loss because the employer is                     
          contractually obligated to pay the retirement benefit specified             
          in the plan.”  Id.                                                          
               At one point during his testimony, petitioner referred to              
          the plan as a defined contribution pension plan.  This may have             
          been inadvertent.4  In any case, petitioner’s testimony was                 
          contradicted by that of Alyce Wong, benefits supervisor for the             
          San Francisco City and County Employees Retirement System (the              
          retirement system).                                                         
               Ms. Wong testified that the plan to which petitioner belongs           
          is a defined benefit plan.  She explained that petitioner’s                 
          monthly retirement benefits were calculated based on his age at             
          retirement, years of service, and highest average rate of                   
          compensation.  She also explained that petitioner’s contributions           
          to the plan do not affect the amount of retirement benefits he              
          receives.  Thus, even if petitioner’s contributions to his                  
          retirement fund were exhausted, his retirement benefits would               
          continue unchanged.  Accordingly, we conclude that the plan is a            
          qualified defined benefit plan under section 401(a).                        
               In general, section 72(a) requires amounts received as an              

               4  A publication produced by the retirement system describes           
          the plan as a defined benefit plan.  This publication is included           
          as an exhibit to the stipulation of facts, and petitioner made              
          frequent reference to it during trial.                                      

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