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of correctness as to either notice. Smith v. Commissioner,
supra; INI, Inc. v. Commissioner, T.C. Memo. 1995-112, affd.
without published opinion 107 F.3d 27 (11th Cir. 1997).
1. Whether Petitioners Must Include the $12,000 in Gross Income
In general, a distribution from a qualified retirement plan5
is taxable to the distributee under section 72 (relating to
annuities). Sec. 402(a); Darby v. Commissioner, 97 T.C. 51, 57
(1991). Neither the Code nor the regulations define the term
“distributee”. This Court has concluded, however, that the term
ordinarily means the participant or beneficiary who, under the
plan, is entitled to receive the distribution. Darby v.
Commissioner, supra at 58; Seidel v. Commissioner, T.C. Memo.
2005-67.
Section 402(e)(1)(A) provides an exception to the general
rule of section 402(a). It provides that the “spouse or former
spouse” of the plan participant who receives “any distribution or
payment made * * * under a qualified domestic relations order (as
defined in section 414(p))” shall be considered an “alternate
payee” and taxed on such distribution or payments as the
distributee. Sec. 402(e)(1)(A); Darby v. Commissioner, supra at
5 Although the parties did not address the qualified status
of the Delta plan, there is nothing in the record that would lead
us to believe that the employees’ trust is not described in sec.
401(a) and not exempt from tax under sec. 501(a).
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