Robert E. and Lori K. Reichner - Page 11

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          monthly payments Ms. Reichner received from January through                 
          November 2002 were not made under the QDRO.                                 
               The monthly payment for December 2002 presents a closer                
          question.  Petitioner believed he “probably” stopped sending Ms.            
          Reichner checks in December 2002 but admitted he was not sure.              
          The absence of a canceled check for that month is circumstantial            
          evidence that the Delta plan had begun making distributions to              
          Ms. Reichner under the QDRO.  Petitioner testified, however, that           
          he had lost some of his canceled checks either when he moved or             
          when he suffered a house fire.  Furthermore, petitioner reported            
          the entire $12,000 as gross income and claimed a $12,000                    
          deduction.  Had petitioner stopped making payments after                    
          November, one would have expected him to report only $11,000 as             
          gross income and claim an $11,000 deduction.  In sum, considering           
          petitioner’s equivocal testimony, the position he took in the tax           
          return, and the lack of direct evidence, we find that Ms.                   
          Reichner did not receive a distribution from the Delta plan in              
          December 2002.  We therefore conclude that petitioner is the                
          distributee of the $12,000 at issue, which amount is taxable to             
          him under section 72.  See sec. 402(a).                                     
               Amounts received under section 72 generally are includable             
          in gross income.  Sec. 72(a).  Although section 72 provides                 
          exceptions to this rule, nothing in the record indicates that               







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