T.C. Memo. 1997-8
UNITED STATES TAX COURT
GARY BENTON LOGSDON AND KAREN RUTH LOGSDON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10919-94. Filed January 6, 1997.
Gary Benton Logsdon and Karen Ruth Logsdon, pro se.
Kathey I. Shaw, for respondent.
MEMORANDUM OPINION
HAMBLEN, Judge: Respondent determined a deficiency in
petitioners' 1991 Federal income tax of $25,281 and an accuracy-
related penalty of $4,870 pursuant to section 6662(a). Unless
otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year at issue, and all Rule
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references are to the Tax Court Rules of Practice and Procedure.
After concessions, the principal issue for decision is whether
the lump-sum credit from the Civil Service Retirement System
(CSRS) is includable in petitioners' gross income pursuant to
sections 72(e) and 402(a). If the lump-sum credit is taxable,
the subsidiary issue for decision is whether a portion of any
deemed deposit or deemed redeposit in respect of that lump-sum
credit is includable in petitioners' gross income pursuant to
section 72(b) rather than pursuant to section 72(e).
Background
All of the facts have been stipulated pursuant to Rule 122.
The stipulated facts and the attached exhibit are incorporated in
our findings by this reference. At the time the petition was
filed, petitioners resided in Portland, Oregon. Petitioners'
1991 joint Federal income tax return (1991 return) was prepared
and filed on the cash receipts and disbursements method.
During 1991, Gary B. Logsdon retired from the Federal
Government and received a lump-sum payment in the amount of
$62,873. On their 1991 return, petitioners reported $11,808 of
the above amount on lines 17a (Total pensions) and 17b (Taxable
amount). No other entry or reference was made by petitioners on
their 1991 return for the $51,065 balance of the lump-sum
payment. Respondent determined that petitioners were required to
include the lump-sum payment in their gross income in 1991.
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Discussion
Petitioners bear the burden of proving that respondent's
determinations in the notice of deficiency are erroneous. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). The fact
that the case was submitted fully stipulated does not alter
petitioners' burden of proof or the effect of a failure of proof.
Rule 122(b); Borchers v. Commissioner, 95 T.C. 82, 91 (1990),
affd. 943 F.2d 22 (8th Cir. 1991).1
Federal employees eligible to participate in the CSRS make
mandatory contributions from their salary to the Civil Service
Retirement and Disability Fund (Fund). 5 U.S.C. secs. 8334(a),
8331(5) (Supp. 1991). The employing agency withholds such
mandatory contributions from the employee's salary. 5 U.S.C.
sec. 8334(a)(1). The amount so withheld for CSRS from an
employee's salary is taxable in the year in which the mandatory
1
Petitioners stipulated that Mr. Logsdon received a lump-sum
payment in the amount of $62,873 but reported only $11,808 as
income. After trial, petitioners seek relief from the above
stipulation with regard to the amount received, attaching a copy
of Mr. Logsdon's Form 1099R to their reply brief. Mr. Logsdon's
Form 1099R had not been admitted into evidence when this case was
accepted as fully stipulated on Oct. 2, 1995. Such evidence must
be presented to the Court in accordance with the Rules governing
trials. See Rule 143(b). On Oct. 2, 1995, the record in this
case was closed. Accordingly, Mr. Logsdon's Form 1099R is not
admitted into evidence and is not a part of the record.
Moreover, by suggesting this change to the stipulation for the
first time in their posttrial brief, petitioners are advancing a
position that respondent was unable to develop for trial and that
would prejudice respondent's case. Consequently, we shall not
permit petitioners to qualify the parties' stipulation. Rule
91(e); Louisiana Land & Exploration Co. v. Commissioner, 90 T.C.
630, 648-649 (1988).
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contribution is withheld. Malbon v. United States, 43 F.3d 466,
467 (9th Cir. 1994). Contributions by the employing agency and
any accrued interest are taxable upon distribution to the
eligible employee. Secs. 72, 402(a).
Federal employees who met the retirement eligibility
requirements and retired after June 5, 1986, could elect the
basic annuity or the alternative annuity. 5 U.S.C. secs.
8342(a), 8343a. The basic annuity is determined by years of
service and salary at retirement. 5 U.S.C. sec. 8339. The
alternative annuity provides the employee with a lump-sum credit
and a reduced annuity. 5 U.S.C. sec. 8343a. A lump-sum credit
is the unrefunded amount of the employee's contributions and
deposits covering earlier service. 5 U.S.C. sec. 8331(8).2 The
present value of the alternative annuity is designed to be the
2
5 U.S.C. sec. 8331(8) (Supp. 1991) defines a lump-sum
credit, in part, as the unrefunded amount consisting of:
(A) retirement deductions made from the basic pay of an
employee * * *;
(B) amounts deposited by an employee * * * covering
earlier service, including any amounts deposited under
section 8334(j) of this title; and
(C) interest on the deductions and deposits at 4
percent a year to December 31, 1947, and 3 percent a
year thereafter compounded annually to December 31,
1956, or, in the case of an employee * * * separated or
transferred to a position in which he does not continue
subject to this subchapter before he has completed 5
years of civilian service, to the date of the
separation or transfer * * *
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actuarial equivalent to the present value of the basic annuity.
5 U.S.C. sec. 8343a(c).
I. Taxability of a Lump-Sum Credit
Section 72(e) governs the taxation of amounts received under
an annuity contract but not received as an annuity. Sec.
72(e)(1)(A).3 Section 72(e)(2)(A) provides that any amount
subject to section 72(e) (i.e., an amount received under an
annuity contract but not received as an annuity) shall be
included in gross income if it is received on or after the
annuity start date.4 Section 72(e)(5)(E), however, excludes such
an amount from gross income to the extent the amount received is
in full discharge of a contract.5 Section 72(d) provides, for
3
Sec. 72(e)(1)(A) provides:
In general.--This subsection shall apply to any amount
which--
(i) is received under an annuity, endowment, or
life insurance contract, and
(ii) is not received as an annuity, if no
provision of this subtitle (other than this subsection)
applies with respect to such amount.
4
Sec. 72(e)(2) provides in pertinent part:
General rule.--Any amount to which this subsection
applies--
(A) if received on or after the annuity starting
date, shall be included in gross income * * *
5
Sec. 72(e)(5)(E) provides:
(continued...)
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purposes of section 72, "employee contributions * * * under a
defined contribution plan may be treated as a separate contract."
To be treated as a separate contract under section 72(d),
contributions must be made under a defined contribution plan.
Section 414(k)(2) creates a hybrid plan, one with both a defined
benefit and a defined contribution component. Section 414(k)(2)
allows a defined benefit plan to be treated as a defined
contribution plan to the extent the benefits are based on the
separate account of a participant and as a defined benefit plan
with respect to the remaining portion of benefits under the
plan.6
5
(...continued)
Full refunds, surrenders, redemptions, and maturities.-
-This paragraph shall apply to--
(i) any amount received, whether in a single
sum or otherwise, under a contract in full discharge of
the obligation under the contract which is in the
nature of a refund of the consideration paid for the
contract, and
(ii) any amount received under a contract on
its complete surrender, redemption, or maturity.
In the case of any amount to which the preceding sentence
applies, the rule in paragraph [72(e)](2)(A) shall not
apply.
6
Sec. 414(k) provides in part:
SEC. 414(k). Certain Plans.--A defined benefit
plan which provides a benefit derived from employer
contributions which is based partly on the balance of
the separate account of a participant shall--
* * * * * * *
(continued...)
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The parties agree that Mr. Logsdon elected under 5 U.S.C.
section 8343a to receive an alternative annuity consisting of a
lump-sum credit and a reduced annuity. The parties also agree
that Mr. Logsdon's contributions to the CSRS should be recovered
tax free. Consequently, this case does not involve the question
of whether Mr. Logsdon can recover his contributions tax free but
rather when that recovery should occur.
While petitioners acknowledge that the CSRS plan, in which
Mr. Logsdon participates, is a defined benefit plan, they argue
that Mr. Logsdon's contributions were made to a separate account
in the CSRS, thus satisfying the separate-account requirement of
section 414(k). Thus, petitioners assert that his receipt of the
lump-sum credit in 1991 was simply a tax-free return of his
contributions. Respondent, however, contends that case law is
settled that the lump-sum credit must be reported as taxable
income in the year received pursuant to section 72(e)(2).
Petitioners concede that for a separate account to be
recognized as a defined contribution plan for purposes of section
414(k), it must have some of the characteristics of a defined
contribution plan. Section 414(i) defines a defined contribution
6
(...continued)
(2) for purposes of [section] 72(d) * * * be
treated as consisting of a defined contribution plan to
the extent benefits are based on the separate account
of a participant and as a defined benefit plan with
respect to the remaining portion of benefits under the
plan * * *
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plan as "a plan which provides for an individual account for each
participant and for benefits based solely on the amount
contributed to the participant's account, and any income,
expenses, gains, and losses, and any forfeitures of accounts of
other participants which may be allocated to such participant's
account." Although petitioners acknowledge that a defined
contribution plan must provide for an individual account for each
participant, and the benefits therefrom must be based on the
amounts contributed, they contend that gains and losses are not
required to be allocated to a participant's account and that
maintaining individual records of the participant's contributions
is sufficient. Petitioners focus on the inclusion of the terms
"any" and "may" in section 414(i) in defining a defined
contribution plan.
In support of their contention, petitioners rely upon the
decision in Guilzon v. Commissioner, 985 F.2d 819 (5th Cir.
1993), affg. on other grounds 97 T.C. 237 (1991), in which the
Court of Appeals for the Fifth Circuit rejected the Government's
assertion that earnings and losses must be allocated to the
participant's account. The Court of Appeals focused on the
language of section 414(i) and concluded that an account can
qualify as a separate account without having gains and losses
being credited to the participant's account. Id. at 822. While
ultimately concluding that the taxpayer's lump-sum credit was
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taxable,7 the court found that the individual accounting for
Guilzon's contributions satisfied the separate-account
requirement of section 414(k). Id.
The Court of Appeals for the Ninth Circuit addressed
petitioners' argument in Malbon v. United States, 43 F.3d 466
(9th Cir. 1994), the controlling decision in the Court of Appeals
to which an appeal in this case would lie. See Golsen v.
Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.
1971). In Malbon v. United States, supra, the taxpayer retired
under the CSRS in 1987 and elected the alternative annuity under
5 U.S.C. sections 8342(a) and 8343a, receiving a lump-sum credit
and a reduced annuity. Malbon also contended that his
contributions were placed into a separate account in the CSRS,
constituting a separate account pursuant to section 414(k) and,
consequently, were not taxable. The Ninth Circuit rejected
Malbon's argument and the reasoning of the Fifth Circuit in
Guilzon. Malbon v. United States, supra at 469-470. Instead,
the court reasoned that
A defined benefit plan provides a benefit regardless of
the contribution amount or the success of the
investments. The amount of the benefit is guaranteed
based on years of service and salary at time of
retirement. A defined contribution plan, however,
provides a benefit dependent on the investment
performance of the contributions. The employee is not
7
The Court of Appeals for the Fifth Circuit held that
Guilzon's lump-sum credit was taxable because the CSRS did not
provide a benefit derived from employer contributions as required
by sec. 414(k).
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guaranteed any particular benefit, but rather is
provided with the account balance at retirement.
Section 414(k) provides that where a defined benefit
plan provides a benefit based on the separate account
of a participant, it may [be] treated as a defined
contribution plan. In essence, section 414(k) creates
a hybrid plan consisting of both a defined benefit and
defined contribution plan. In so doing, the separate
account of the participant must therefore maintain the
characteristics of a defined contribution plan. Merely
maintaining records to keep track of an individual's
contribution does not satisfy this requirement. [Id. at
470-471; emphasis added.]
The Ninth Circuit went on to observe that, because Malbon's
benefits were determined on the basis of average salary and years
of service and because the return of his contributions included
no increment for earnings thereon, there was no benefit based
upon the balance of the separate account of the taxpayer as
required by section 414(k). Without such a benefit, the court
concluded that the CSRS did not have a defined contribution
component, and Malbon's lump-sum credit was taxable in the year
received. Accord Montgomery v. United States, 18 F.3d 500 (7th
Cir. 1994); Green v. Commissioner, T.C. Memo. 1994-340.
Although petitioners concede that "the clear language of the
statutes * * * must control the outcome of this case," they also
assert that the legislative history and other nonstatutory
evidence requires a different conclusion. The Ninth Circuit in
Malbon v. United States, supra at 471, fn. 11, considered
sections 72 and 414 to be unambiguous and refused to rely upon
legislative history. Consequently, in this framework,
petitioners' argument misses the mark.
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The Ninth Circuit, the Courts of Appeals in three other
circuits, this Court, and the Court of Federal Claims all
concluded that a lump-sum credit does not fall within the
definition of a defined contribution plan. Malbon v. United
States, supra; Montgomery v. United States, supra; George v.
United States, 30 Fed. Cl. 371 (1994), affd. 90 F.3d 473 (Fed.
Cir. 1996); Guilzon v. Commissioner, supra at 242; Green v.
Commissioner, supra; Shimota v. United States, 21 Cl. Ct. 510
(1990), affd. 943 F.2d 1312 (Fed. Cir. 1991). We have carefully
considered petitioners' other arguments and have concluded that
they cannot prevail against the above decisions, even though, to
some extent, they have differing strands of reasoning.
Accordingly, we hold that the CSRS plan does not have a
defined contribution plan component because the separate account
requirement of section 414(k) was not met. Mr. Logsdon's lump-
sum credit is not treated as received under a separate contract
for purposes of section 72(d) and is not excludable pursuant to
section 72(e)(5)(E). Finally, we sustain respondent's
determination requiring petitioners to include the entire lump-
sum credit of $62,873 in their gross income in 1991 pursuant to
section 72(e)(2).
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II. Deemed Deposits
Some CSRS participants owed the Fund either a deposit or
redeposit for civilian service. The former represents the amount
retiring Government participants must pay into CSRS to obtain a
credit in determining the retirement annuity for a period in
which they were Federal employees but did not contribute to the
Fund. 5 U.S.C. sec. 8334(c) The latter represents a redeposit
of CSRS contributions that had previously been withdrawn by the
participant but which may be redeposited to obtain credit in
determining the retirement annuity for the period during which
such withdrawn contributions were originally made. 5 U.S.C. sec.
8334(d); see George v. United States, supra at 380-382.
The CSRS deemed those participants who elected the
alternative annuity and owed the Fund either a deposit or
redeposit as having paid the amount due (deemed deposit or
redeposit, respectively) in the year in which they received their
lump-sum credit. 5 C.F.R. sec. 831.2206 (1991). The CSRS
reduced the lump-sum credits of the participants by the deemed
deposit or redeposit but regarded the unreduced amount as taxable
to the participants for Federal income tax purposes. Id.
Petitioners argue that, if we hold that Mr. Logsdon's lump-sum
credit must be included in their gross income, then the amounts
representing deemed deposits or deemed redeposits should be taxed
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on a prorated basis pursuant to section 72(b).8 We need not
address whether any portion of Mr. Logsdon's lump-sum credit is
includable pursuant to section 72(b), for petitioners have not
established that Mr. Logsdon made a deemed deposit or redeposit.
In any event, a similar argument as to a deemed deposit was
rejected by the Ninth Circuit in Malbon v. United States, 43 F.3d
at 471-472, concluding that the economic substance of the
arrangement required that the deemed deposit be taxed as part of
the lump-sum payment in accordance with section 72(e).
III. Section 6662(a)--Accuracy-Related Penalty
Respondent determined that petitioners are liable for an
accuracy-related penalty of $4,870 pursuant to section 6662(a)
for 1991. Section 6662 imposes a 20-percent penalty on any
portion of any underpayment that is attributable to any
substantial understatement of income tax. Sec. 6662(a)(2),
8
Sec. 72(b) provides in pertinent part:
SEC. 72(b). Exclusion Ratio.--
(1) In general.-- Gross income does not include
that part of any amount received as an annuity under an
annuity, endowment, or life insurance contract which
bears the same ratio to such amount as the investment
in the contract (as of the annuity starting date) bears
to the expected return under the contract (as of such
date).
(2) Exclusion limited to investment.-- The portion
of any amount received as an annuity which is excluded
from gross income under paragraph (1) shall not exceed
the unrecovered investment in the contract immediately
before the receipt of such amount.
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(b)(2). Respondent based the determination of the section
6662(a) penalty on petitioners' underpayment being due to a
substantial understatement. See sec. 6662(b)(2). Section
6662(d)(1)(A) treats an understatement as substantial when it
exceeds the greater of $5,000 or 10 percent of the amount of tax
required to be shown on the return. The understatement is
reduced for purposes of section 6662(d)(1)(A) by that portion of
the understatement which is attributable to the tax treatment of
any item (1) if there is or was substantial authority for such
treatment or (2) if the relevant facts affecting the item's tax
treatment are adequately disclosed in the return or in a
statement attached to the return. Sec. 6662(d)(2)(B).
To determine whether the treatment of any portion of an
understatement is supported by substantial authority, we must
consider whether the weight of authorities in support of the
taxpayer's position is substantial in relation to the weight of
authorities supporting contrary positions. Norgaard v.
Commissioner, 939 F.2d 874 (9th Cir. 1991), affg. in part and
revg. in part T.C. Memo. 1989-390; Antonides v. Commissioner, 91
T.C. 686, 702-703 (1988), affd. 893 F.2d 656 (4th Cir. 1990);
sec. 1.6662-4(d)(3), Income Tax Regs.
With respect to the penalty under section 6662, the burden
of proof is on petitioners. Rule 142(a). Petitioners do not
argue that they had substantial authority for their position.
Rather, they argue that the penalty should not apply because they
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adequately disclosed the lump-sum credit to respondent. In their
reply brief, petitioners argue that they had attached a copy of
Mr. Logsdon's Form 1099R from the OPM to their tax return, and
such an attachment serves as adequate disclosure. The parties,
however, stipulated that petitioners reported $11,808 of Mr.
Logsdon's lump-sum credit as income but that the return contains
no other entries or references to the balance of $51,065.
The interpretation of a stipulation is determined primarily
by ascertaining the intent of the parties, and such intent is a
question of fact. Stamos v. Commissioner, 87 T.C. 1451, 1455
(1986). Ordinarily, a stipulation of fact is binding on the
parties, and we are constrained to enforce it. Rule 91. We
shall not permit a party to a stipulation to qualify, change, or
contradict the stipulation except where justice requires. Rule
91(e). The Court may modify or set aside a stipulation that is
clearly contrary to the facts revealed on the record. Cal-Maine
Foods, Inc. v. Commissioner, 93 T.C. 181, 195 (1989).
Petitioners' position seeks to qualify the otherwise
unambiguous stipulations. Petitioners have not argued that
justice requires that we permit them to qualify the stipulations.
There is no evidence in the record to support petitioners'
contention that Mr. Logsdon's Form 1099R was attached to their
return. The parties filed a copy of petitioners' 1991 return as
a joint exhibit. No Form 1099R attachment was included with that
exhibit. Accordingly, we conclude that petitioners did not
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establish that they adequately disclosed the balance of the lump-
sum credit.
The accuracy-related penalty pursuant to section 6662(b)(2)
does not apply to any portion of an underpayment if it is shown
that there was reasonable cause for that portion of the
underpayment and that the taxpayers acted in good faith with
respect to such portion. Sec. 6664(c)(1). The determination of
whether petitioners acted with reasonable cause and in good faith
depends upon the pertinent facts and circumstances. Sec. 1.6664-
4(b)(1), Income Tax Regs. The most important factor is the
extent of the taxpayers' effort to assess their proper tax
liability for the taxable year. Id. After carefully examining
the record, we find no basis on which we can conclude that
petitioners acted with reasonable cause and in good faith with
respect to any portion of the understatement determined by
respondent. By their own admission, petitioners acknowledge that
Mr. Logsdon is a "professional accountant and is well versed in
tax reporting procedures," yet they do not present any evidence
of their effort to assess their proper tax liability.
Petitioners have failed to prove that they had substantial
authority, that they adequately disclosed the relevant facts
concerning the lump-sum credit, or that they acted with
reasonable cause and in good faith with respect to any portion of
the understatement. Because petitioners' understatement for the
1991 taxable year is substantial, we sustain respondent's
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determination on this issue. We have considered all of the other
arguments made by petitioners and, to the extent we have not
addressed them, find them to be without merit.
Decision will be entered
under Rule 155.