T.C. Memo. 2014-73
UNITED STATES TAX COURT
GINA B. WEAVER-ADAMS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13416-12. Filed April 28, 2014.
Gina B. Weaver-Adams, pro se.
Kimberly T. Packer, for respondent.
MEMORANDUM OPINION
KROUPA, Judge: Respondent determined a $23,6551 deficiency in
petitioner’s Federal income tax and a $4,731 accuracy-related penalty under
section 66622 for 2009.
1
All amounts are rounded to the nearest dollar.
2
All section references are to the Internal Revenue Code (Code) in effect for
(continued...)
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[*2] There are two issues for decision. We are first asked to decide whether a
distribution petitioner received from her ex-husband’s section 401(k) savings plan
(401(k)) is includable in her gross income for 2009. We hold that the distribution
is includable in petitioner’s gross income for 2009. The second issue is whether
petitioner is liable for an accuracy-related penalty under section 6662(a) for 2009.
We hold that she is.
Background
This case was submitted fully stipulated pursuant to Rule 122, and the facts
are so found. The stipulation of facts, the supplemental stipulation of facts and the
accompanying exhibits are incorporated by this reference. Petitioner resided in
California at the time she filed the petition.
Petitioner was married to Michael Adams. On July 23, 2009, petitioner and
Mr. Adams (ex-husband) were divorced by final decree (Divorce Decree) in
California. Petitioner’s ex-husband participated in his employer’s 401(k), which
was administered by Mercer Trust Co. (Mercer).3 Petitioner was named an
2
(...continued)
2009, and all Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
3
Petitioner does not argue, and the record does not reflect, that any portion
of the 401(k) was funded with after-tax contributions.
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[*3] alternate payee of the 401(k) pursuant to a Qualified Domestic Relations
Order (QDRO) as part of the Divorce Decree. The QDRO provided that
petitioner, as alternate payee, was liable for any income tax on distributions from
the 401(k).4
In 2009 petitioner requested and received a distribution of $103,098 from
Mercer (Distribution) as the alternate payee. Mercer issued petitioner a Form
1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing
Plans, IRAs, Insurance Contracts, etc., reflecting the Distribution and withheld
$10,310 in Federal income tax and $1,031 in State income tax. Petitioner reported
the Distribution on the tax return for 2009 as nontaxable pension and annuity
income.
Respondent issued a deficiency notice for 2009 determining that the
Distribution is includable in petitioner’s gross income. Respondent also
determined that petitioner is liable for the accuracy-related penalty under section
6662(a). Petitioner timely filed the petition.
4
Additionally, the Divorce Decree created a “payment to complete division
of community estate” as a property settlement. The Divorce Decree did not
specify that the retirement distribution was nontaxable.
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[*4] Discussion
We are asked to consider whether petitioner is required to include the
Distribution in her gross income for 2009. We are also asked to consider whether
petitioner is liable for the accuracy-related penalty under section 6662(a). We
shall consider each of these issues in turn.5
I. Whether the Distribution Is Includable in Petitioner’s Gross Income
We first consider whether petitioner is required to include the Distribution
in her gross income. Petitioner contends that her ex-husband was indebted to her
and paid her from the 401(k) to satisfy the debt. Petitioner argues that she was not
required to include the Distribution in her gross income because the debt created
basis in the 401(k) that exceeded the Distribution amount. Respondent argues that
the Distribution is includable in gross income. Additionally, respondent argues
that petitioner cannot have basis in the 401(k) as a transferee and distributee. We
begin with the governing law.
Gross income includes all income from whatever source derived. Sec.
61(a). This includes distributions from annuities and employees’ trusts. Secs.
5
Petitioner does not claim the burden of proof shifts to respondent. See sec.
7491(a). Petitioner also did not establish she satisfies the requirements of the
statute to shift the burden of proof to respondent. See sec. 7491(a)(2). We
therefore find that the burden of proof remains with petitioner as to any factual
issue affecting her liability for the deficiency.
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[*5] 61(b), 72(a)(1), 402(b)(2). Employees’ trusts include qualified cash or
deferred arrangements for the benefit of employees that meet certain criteria. Sec.
401(k). Employees’ trust amounts categorized as employer contributions are not
distributable before the employee’s “severance from employment, death or
disability * * *, the attainment of age 59-1/2 * * * [or] upon hardship of the
employee.” Sec. 401(k)(2)(B)(i). Employer contributions include elective
contributions. Sec. 1.401(k)-1(a)(4)(ii), Income Tax Regs.
Elective contributions are not included in the employee’s gross income in
the year of the contributions. Secs. 1.401(k)-1(a)(4)(iii), 1.402(a)-1(d)(2), Income
Tax Regs. Thus, elective contributions must be taxed in the year that they are
distributed. Sec. 1.402(a)-1(a)(1)(ii), Income Tax Regs. Distributions are taxable
in the year they are received because they are paid from pre-tax dollars. See sec.
402(a); sec. 1.402(a)-(1)(a)(1) and (2), Income Tax Regs. Tax may be deferred,
however, if the distribution is rolled over into an eligible retirement plan within 60
days of receipt. Sec. 402(a), (c). Distributions are taxed as ordinary income. See
sec. 72; Darby v. Commissioner, 97 T.C. 51, 58 (1991); Seidel v. Commissioner,
T.C. Memo. 2005-67.
Thus, a distribution from a qualified retirement plan is taxable to the
distributee as ordinary income if it is not rolled over into an eligible retirement
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[*6] plan. Sec. 402(a), (c); Darby v. Commissioner, 97 T.C. at 58. 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, 97 T.C. at
58; Seidel v. Commissioner, T.C. Memo. 2005-67.
A spouse or former spouse of a plan participant who receives any
distribution or payment made pursuant to a QDRO6 is an alternate payee and is
subject to tax on the distribution or payments as the distributee. Sec.
402(e)(1)(A); Seidel v. Commissioner, T.C. Memo. 2005-67; see also sec.
414(p)(8) (defining “alternate payee”).7 If property is transferred incident to
divorce,8 the transferee’s basis is the adjusted basis of the transferor. Sec. 1041(b).
A participant in a 401(k) plan has no tax basis because the participant has not paid
6
As defined in sec. 414(p).
7
The parties agree that petitioner received the Distribution as part of the
QDRO. Similarly, neither party contests that petitioner was an alternate payee, as
defined in sec. 414(p)(8). The parties also agree that petitioner actually received
the Distribution in 2009. It is also undisputed that petitioner did not pay any tax
on the Distribution for 2009. Petitioner’s return for 2009 reported the Distribution
as nontaxable pension and annuity income.
8
A transfer is incident to divorce if it occurs within one year after the
marriage ends or if the transfer is related to the marriage ending. Sec. 1041(c).
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[*7] tax on the contributions, which are made in pre-tax dollars.9 See sec.
1.401(k)-1(a)(4)(iii), Income Tax Regs. Therefore, a taxpayer who receives the
distribution as a transfer of property incident to divorce does not have basis in the
former spouse participant’s retirement plan. See sec. 1.408-4(a)(2), Income Tax
Regs.
We hold that the Distribution is includable in petitioner’s gross income. See
sec. 402(e)(1)(A); Seidel v. Commissioner, T.C. Memo. 2005-67. Further, we
hold that petitioner did not have basis in her ex-husband’s 401(k). See sec. 1.408-
4(a)(2), Income Tax Regs.
Petitioner has no basis in the 401(k). Petitioner’s assertion that she has
basis in the 401(k) because she received the Distribution as part of the Divorce
Decree is legally unsupported.10 Petitioner received the Distribution as a transfer
9
We note that it is possible for a 401(k) plan to have an after-tax
contribution component and a corresponding basis for the plan participant. See,
e.g., sec. 402A (discussing treatment of Roth contributions); sec. 1.401(k)-
1(a)(4)(iii), Income Tax Regs. Nonetheless, petitioner does not argue, and the
record does not reflect, that any portion of the 401(k) was funded with after-tax
Roth contributions.
10
We place no weight on the documents submitted with the Supplemental
Stipulation. As a legal matter, petitioner cannot establish basis in the 401(k).
Petitioner’s potential basis is limited to the basis petitioner’s ex-husband had in
the 401(k) at the time of the transfer.
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[*8] of property made incident to divorce because it occured within one year11 of
the marriage ending and was related to the marriage ending. As a result, petitioner
received her ex-husband’s adjusted basis, which was zero. Petitioner’s ex-
husband contributed pre-tax dollars pursuant to the rules for tax-deferred 401(k)
plans and therefore had zero basis in the 401(k).
Petitioner had the option to roll over the Distribution to an eligible
retirement plan or IRA within 60 days of receipt. Petitioner’s decision not to roll
over the Distribution requires the Distribution to be included in gross income.12
The 401(k) contributions were contributed in pre-tax dollars, and no tax was paid
on the funds making up the Distribution. Petitioner received the Distribution
pursuant to the QDRO,13 which specifically provides that petitioner was liable for
any tax on distributions from the 401(k). The Distribution cannot escape taxation
because petitioner erroneously believed that her ex-husband’s debt to her created
basis in the 401(k).
11
The Divorce Decree was entered on July 23, 2009 and petitioner received
the Distribution in the 2009 tax year.
12
Petitioner acknowledges that she requested and received the Distribution
from Mercer.
13
The Distribution was not subject to a 10% early distribution tax because
petitioner received the Distribution through the QDRO. See sec. 72(t)(2)(C).
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[*9] In toto, petitioner’s arguments are insufficient to rebut the presumption of
correctness of respondent’s deficiency determination. Whether petitioner’s ex-
husband owed petitioner a debt is irrelevant to determine whether the Distribution
is includable in gross income.14 Petitioner received the Distribution during the
2009 tax year making it within one year after the date the marriage ended on July
23, 2009 and constituting a transfer incident to divorce. Petitioner’s basis was
limited to her ex-husband’s basis. Because her ex-husband had zero basis, so too
did petitioner. Moreover, the QDRO specifically provides that petitioner was
liable for any tax on distributions from the 401(k). Petitioner did not and cannot
demonstrate that respondent’s deficiency determination is in error.15 Respondent
14
Previously, the Court has indicated that a distribution may be taxable to
the participant spouse, rather than the alternate payee, where the distribution is in
discharge of a legal obligation. See Warren v. Commissioner, T.C. Memo. 2009-
148 n.8 (discussing Vorwald v. Commissioner, T.C. Memo. 1997-15 (where an
IRA distribution was held taxable to participant rather than spouse because IRA
funds were transferred in partial discharge of participant’s child support
obligation)). There is nothing in the record indicating that petitioner’s ex-husband
transferred the 401(k) to petitioner in discharge of a legal obligation. Petitioner
received her interest in the 401(k) as part of a property settlement with her ex-
husband.
15
There are circumstances where the transfer of a spouse’s interest in an
individual retirement account, individual retirement annuity or a retirement bond
incident to divorce, is not considered to be a distribution or a taxable transfer by a
spouse to a former spouse. See sec. 1.408-4(g), Income Tax Regs. This is limited
to situations where the interest is merely transferred to the spouse, rather than
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[*10] prevails. We find that petitioner failed to establish that the Distribution is
nontaxable, and therefore we sustain respondent’s determinations in the statutory
notice.
II. Accuracy-Related Penalty
We next consider whether petitioner is liable for the accuracy-related
penalty. See sec. 6662(a). Respondent has the burden of production and must
present sufficient evidence that it is appropriate to impose the penalty. See sec.
7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).
A taxpayer is liable for an accuracy-related penalty as to any portion of an
underpayment attributable to, among other things, a substantial understatement of
income tax. Sec. 6662(a), (b)(2). There is a substantial understatement of income
tax if the amount of the understatement exceeds the greater of either 10% of the
tax required to be shown on the return, or $5,000. Sec. 6662(d)(1)(A); sec.
1.6662-4(a), Income Tax Regs.
Petitioner reported she owed $1,559 for 2009 and respondent determined
that petitioner owed $24,214. Thus, petitioner understated the tax on her return by
15
(...continued)
liquidated, as here. See id. A distribution is taxable in the year it is received, but
tax may be deferred if the distribution is rolled over into an eligible retirement
plan within 60 days of receipt. See secs. 401(k), 402(a), (c).
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[*11] $22,655, which is greater than 10% of the tax required to be shown on the
return, and exceeds $5,000. Accordingly, respondent has met his burden of
production with respect to petitioner’s substantial understatement of income tax
for 2009.
The accuracy-related penalty does not apply to any portion of an
underpayment, however, if it is shown that there was reasonable cause for the
taxpayer’s position and that the taxpayer acted in good faith with respect to that
portion. See secs. 6662(a), 6664(c)(1); sec. 1.6664-4(b), Income Tax Regs. The
determination of whether a taxpayer acted with reasonable cause and in good faith
is made on a case-by-case basis, taking into account all the pertinent facts and
circumstances, including the taxpayer’s efforts to assess his or her proper tax
liability and the knowledge and experience of the taxpayer. Sec. 1.6664-4(b)(1),
Income Tax Regs. The taxpayer bears the burden of proof with respect to
reasonable cause. Higbee v. Commissioner, 116 T.C. at 446.
We understand petitioner to argue that she had reasonable cause for treating
the Distribution as nontaxable income because she contends that she relied in good
faith on the advice of her tax professional. Petitioner’s assertion is
unsubstantiated. Petitioner did not demonstrate that a tax professional advised her
to take the position that the Distribution was nontaxable income. Petitioner’s
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[*12] inclusion of an unauthenticated and unsigned document, purportedly created
by her tax professional, does not substantiate her claim. Moreover, there is
nothing in the record regarding whether the Distribution was nontaxable income.
Additionally, there is nothing in the record demonstrating that petitioner provided
the Form 1099-R to her tax professional. See Neonatology Assocs., P.A. v.
Commissioner, 115 T.C. 43, 99 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002). In
sum, petitioner failed to establish that the Distribution was nontaxable.
After considering all of the facts and circumstances, we find for respondent
regarding both the taxability of the Distribution and the accuracy-related penalty.
We have considered all remaining arguments the parties made and, to the
extent not addressed, we conclude they are irrelevant, moot or meritless.
To reflect the foregoing,
Decision will be entered
for respondent.