PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLAN R. POWELL; JOAN K. POWELL,
Petitioners-Appellants,

v.                                              No. 96-2549

COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

RICHARD J. MONTGOMERY; ADELE S.
MONTGOMERY,
Petitioners-Appellants,
                                                No. 96-2554
v.

COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

Appeals from the United States Tax Court.
(Tax Ct. Nos. 93-3499, 96-8028)

Argued: June 6, 1997

Decided: October 16, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and
GARBIS, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Garbis wrote the opinion, in
which Judge Hamilton and Judge Luttig joined.

_________________________________________________________________
COUNSEL

ARGUED: Edward L. Blanton, Jr., Baltimore, Maryland, for Appel-
lants. Kenneth W. Rosenberg, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Loretta C. Argrett, Assistant Attorney General, Richard Far-
ber, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

GARBIS, District Judge:

Appellants Allan R. and Joan K. Powell and Appellants Richard J.
and Adele S. Montgomery appeal from decisions of the United States
Tax Court holding them liable for assessed taxes on excess distribu-
tions from their respective retirement plans.

I. INTRODUCTION

A. In General

Succinctly put, the Internal Revenue Code permits employers to
place part of the compensation paid to an employee into a qualified,
tax-sheltered retirement account. The employer obtains a deduction
for the contribution at the time it is made. However, the employee
does not treat the amount of compensation placed into the plan as cur-
rent income, and does not report the income earned in the plan prior
to distribution. Only at the time the employee receives a distribution
from the plan does he/she recognize income with regard to the distri-
bution.

There are various restrictions upon the timing and amounts of dis-
tributions from a qualified pension plan. "Early" distributions1 are
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1 That is, distributions made before the employee reaches a specified
age or certain other events occur.

                    2
subject to additional tax burdens, as are distributions in excess of per-
missible amounts.

The instant cases arise because the taxpayers chose to switch from
one retirement plan to another and, in connection with their switches,
received distributions of the funds in their accounts. These distribu-
tions were subject to income tax and resulted in Internal Revenue Ser-
vice ("IRS") determinations of liability for the additional tax burdens
at issue in these cases.

B. Statutory Framework

A "retirement distribution" is an amount distributed under an indi-
vidual retirement plan or under a qualified employer plan. See
§ 4980A(e)(1).2 A qualified employer plan is a "plan described in sec-
tion 401(a) which includes a trust exempt from tax under section
501(a)," § 4980A(e)(2)(A), that the Commissioner has at any time
determined to be a qualified pension plan pursuant to section 401. See
§ 4980A(e)(2).

Section 4980A imposes a fifteen percent excise tax on "excess dis-
tributions" from qualified retirement plans. An"excess distribution"
is the amount of a retirement distribution which exceeds an exempt
threshold. See § 4980A(c)(1). The exemption is normally $150,000.
See § 4980A(c)(1)(A). However, if a distribution qualifies as a "lump
sum distribution," the exempt threshold is increased five fold, to
$750,000. See § 4980(c)(4).

Section 72(t) imposes a ten percent tax on the gross income
included in "early" distributions from qualified retirement plans.3 A
_________________________________________________________________

2 All statutory references herein are to the Internal Revenue Code of
1986, 26 U.S.C., unless otherwise indicated.

3 The term "qualified retirement plan" in § 72(t)(1) includes, as it does
for purposes of § 4980A, "a plan described in Section 401(a) which
includes a trust exempt from tax under section 501(a)." This definition
includes "any plan . . . which, at any time, has been determined by the
Secretary [of the Treasury] to be such a plan." § 4974(c).

                     3
distribution is "early" if made before the employee reaches age
59-1/2. See § 72(t)(2)(A)(I).4

II. BACKGROUND

In 1927, the State of Maryland created a fund to provide retirement
benefits for teachers employed by the state. Maryland created a simi-
lar fund in 1941 to provide retirement benefits for all state employees.
The two systems, collectively, are referred to as"the Old Retirement
System." The Old Retirement System required a non-deductible five
percent contribution from all participants. The Old Retirement System
was a "qualified defined benefit plan" within the meaning of 26
U.S.C. § 401(a). Therefore, the trusts maintained by the Old Retire-
ment System were tax-exempt trusts under 26 U.S.C.§ 501(a).

In the late 1970's, actuarial projections indicated that the Old
Retirement System was dangerously underfunded. In response to
those findings, the State closed eligibility for participation in the Old
Retirement System as of January 1, 1980. The State also developed
the Maryland Employees' Pension System ("the Employees' Pension
System") and the Maryland Teachers' Pension System (the "Teach-
ers' Pension System") to provide retirement benefits for state employ-
ees and teachers hired after January 1, 1980. The Teachers' Pension
System required nondeductible contributions only from those partici-
pants who had salaries greater than the taxable wage base set for
Social Security benefits. The Teachers' Pension System was a "quali-
fied defined benefit plan" within the meaning of 26 U.S.C. § 401(a),
and the trusts maintained by the Teachers' Pension System were,
therefore, tax-exempt trusts under § 501(a).

In 1989, the State passed further pension reform legislation. At that
point, participants in the Teachers' Pension System had the following
four options:

           a. Pay an additional two percent of salary and retain
           unlimited cost of living adjustments on their benefits at
           the time of retirement;
_________________________________________________________________
4 The § 72(t) tax is subject to various exceptions, none of which are rel-
evant to the instant cases. See § 72(t)(2).

                     4
          b. Freeze their rate of contribution at the then-current level
          and retain the same benefit formula with the under-
          standing that any future cost of living adjustment would
          be limited to a maximum of a five percent increase in
          any one year;

          c. Participate in a hybrid plan whereby they would receive
          benefits based on the Teachers' Pension System formula
          to the extent of retirement credit earned up to July 1,
          1984, and benefits based on the new pension system
          formula for credit earned after that date; or

          d. Transfer into a new system ("the New Pension Sys-
          tem").

See Conway v. United States, 908 F. Supp. 292, 294 (D. Md. 1995);
Md. State Teachers' Ass'n v. Hughes, 594 F. Supp. 1353 (D. Md.
1984) (providing a detailed description of Maryland pension reform).

Appellants Allan R. Powell ("Powell") and Richard J. Montgomery
("Montgomery") were participants in the Teachers' Pension System
who chose to transfer into the New Pension System.

III. THE CASES ON APPEAL

In 1990, Appellants Powell and Montgomery transferred from the
Teachers' Pension System to the New Pension System. At the time
of the transfer, each received a distribution ("Transfer Refund") of
their paid-in mandatory deductible contribution to the Retirement
System, plus the interest earned on such paid-in contributions. The
Transfer Refunds were:

                  Powell     Montgomery
Previously Taxed
Contributions        $ 20,477.11 $ 37,064.27
Interest5          456,611.19 301,386.746
                ___________ ___________
                    $477,088.30 $338,451.01
_________________________________________________________________
5 Interest was computed at the rate of 15.57% per annum.
6 This amount includes $300,984.04 of interest plus $403.70 of "em-
ployer pickup contributions" (plus interest thereon).

                    5
Powell and Montgomery filed 1990 joint federal income tax returns
with their respective wives reporting thereon the taxable portion of
their Transfer Refunds. Moreover, Montgomery reported an addi-
tional tax of $30,1397 due to the"early" distribution included in the
Transfer Refund.

The Internal Revenue Service reviewed the Powell and Montgom-
ery 1990 federal income tax returns and issued Notices of Deficiency8
determining that additional taxes should be assessed with regard to
each return.

The notice of deficiency issued to Mr. and Mrs. Powell determined
that they would be assessed the § 4980A tax on an excess distribution
from a qualified retirement plan, to wit, a distribution of $456,611.
The tax was computed to be $45,992, being 15% of $306,611 (the net
of $456,611 less an exemption of $150,000). The Powells filed a
timely Tax Court petition denying liability for the§ 4980A tax and
claiming9 that the distribution qualified as a "lump-sum distribution"
under § 402(e)(4)(D). Lump sum treatment would effectively elimi-
nate the § 4980A liability10 and would entitle them to a refund of a
portion of the income taxes which they had reported as due on their
tax return.11 The Tax Court sustained the Commissioner, determined
that there was a deficiency, and denied the claim for refund of income
tax.
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7 That is, ten percent of the net of the $338,048.31 Transfer Refund less
the $37,064.27 of previously taxed contributions.
8 A notice of deficiency is issued pursuant to § 6213 of the Internal
Revenue Code. A taxpayer has a period, generally 90 days from the issu-
ance of the notice of deficiency (§ 6213(a)), to petition the United States
Tax Court and obtain preassessment judicial review of the Commission-
er's determination. See PAULA M. JUNGHANS AND JOYCE K.
BECKER, Federal Tax Litigation ¶ 3.04 (1992); MICHAEL SALTZ-
MAN, IRS Practice and Procedure ¶ 10.02[a][ii] (2nd Ed. 1991).
9 In an amended petition.
10 By virtue of the $750,000 exemption afforded "lump sum distribu-
tions" in § 4980A(c)(4).
11 A "lump sum distribution" could qualify for preferential ten year for-
ward averaging treatment which, in effect, reduces the income tax pay-
able with regard to the distribution. See§ 402(e)(1).

                    6
The notice of deficiency issued to Mr. and Mrs. Montgomery indi-
cated that they would be assessed the § 4980A excess distribution tax,
which in their case amounted to $7,569.12 Upon receipt of the defi-
ciency notice, Mr. & Mrs. Montgomery filed a timely Tax Court peti-
tion denying liability for the § 4980A tax. They also claimed that they
had erroneously reported liability for the § 72(t) tax and, therefore,
sought a refund of their payment of $30,139 of such tax. The Tax
Court sustained the Commissioner, decided that there was a defi-
ciency of $7,569 as had been determined in the notice of deficiency,
and denied the claim for refund of the § 72(t) tax.

On appeal, the Appellants assert that the Transfer Refunds were not
distributions from a qualified plan subject to the§ 4980A excise tax
and the § 72(t) tax. In addition, the Powell Appellants contend that
even if the Transfer Refund were a distribution from a qualified plan,
it was a lump sum distribution that created an increased exemption
from the § 4980A tax and would be eligible for preferential forward
averaging treatment for income tax purposes.

IV. DISCUSSION

A. Were the Transfer Refunds Amounts Distributed
         Under A Qualified Employer Plan?

Appellants state that a distribution from a qualified employer plan
of an amount in excess of the actual earnings on employee contribu-
tions automatically disqualifies the plan. Consequently, they argue,
the Transfer Refunds could not have been distributions from a "quali-
fied" plan subject to the taxes imposed by §§ 72(t) and 4980A. This
boils down to the contention that because the distributions in question
would by their nature disqualify the plan when made, then logically
the plan could not have been qualified at the time of distribution.
Therefore, according to the Appellants, the Transfer Refunds were
merely "withdrawal(s) of contributions and interest in excess of that
actually earned." In making this argument, the Appellants seek to
have the Court ignore the plain language of the statute.
_________________________________________________________________
12 This is 15% of the excess distribution of $301,387 (i.e. $22,708), less
an offset of $15,139 by virtue of the concomitant liability for the § 72(t)
tax.

                    7
For purposes of the excise taxes imposed by #8E8E # 72(t) and 4980A,
a retirement plan is deemed to be a "qualified plan," even if it is not
qualified on the date of the distribution, so long as the Commissioner
at any time had determined that the plan was qualified. See
§§ 4974(c), 4980A(e)(2). In this case, the New Pension System had
been determined to be a plan described in § 401(a) that included a
trust exempt from tax under § 501(a) on June 23, 1982. Therefore, the
Court must apply the statute as written and reject Appellants' "logi-
cal" argument.

As a second line of defense, Appellants, relying on certain tempo-
rary regulations issued by the Commissioner, argue that the term
"qualified employer plan" does not include government plans because
they are not required to file a federal income tax return.

Section 54.4981A-1T(a-3)(c)(2)(I), Temporary Qualified Pension
Plan Excise Tax Regs., 52 Fed. Reg. 46750 (1987) provides that an
employee plan that is maintained by an employer who"has at any
time filed an income tax return and claimed deductions that would be
allowable under section 404," is a "qualified" plan. However, the
cited Temporary Regulations do not provide an exclusive definition
of those plans that will be considered "qualified employer plans."
Rather, the Temporary Regulations merely advise that even a plan
which has not been the subject of an express IRS determination will
be considered a "qualified employer plan" so long as the employer
itself has filed an income tax return and claimed deductions based
upon the plan's asserted qualified status.13 The fact that the New Pen-
sion System is a government plan, and thus not one as to which the
employer has claimed an income tax deduction, does not change its
status as a "qualified employer plan" under the statutory provisions
here at issue.

For the foregoing reasons, we conclude that the Transfer Refunds
were distributions from a "qualified employer plan" and, therefore,
that the § 4980A tax is applicable to the Appellants. Moreover, as to
Montgomery, who was less than 59-1/2 years of age at the time of
distribution, the § 72(t) tax is applicable.
_________________________________________________________________
13 This closes a potential loophole for an employer plan which was
placed in operation without an advance ruling of qualification.

                    8
B. Was the Transfer Refund to Powell a Lump Sum Distribution?

As discussed above, the § 4980A tax applies to the extent that a
distribution exceeds a threshold exemption of $150,000. If the distri-
bution is a "lump sum distribution" to which an election under
§ 402(e)(4)(B) applies, then the exemption is increased to $750,000.
See § 4980(c)(4).

Section 402(e)(4)(A) defines a "lump sum distribution" as a:

          distribution or payment within one taxable year of the recip-
          ient of the balance to the credit of an employee which
          becomes payable to the recipient

                        ***

          (ii) after the employee attains age 59-1/2,

                        ***

          from a trust which forms a part of a plan described in sec-
          tion 401(a) and which is exempt from tax under section 501.

(emphasis added). In this case, if the Transfer Refund to Powell (who
was at the time over 59-1/2 years of age) constituted a payment of
"the balance to the credit" of Powell, it would be a lump sum distribu-
tion under § 402(e)(4)(A).

Section 402(e)(4)(D)(ii) provides that "[f]or purposes of determin-
ing the balance to the credit of an employee . . . all pension plans
maintained by the employer shall be treated as a single plan." The
Teacher's Pension System and the New Pension System are main-
tained by the same employer, the State of Maryland. Therefore, the
Teacher's Pension System and the New Pension System must be
treated as a single plan. See Dorsey v. Commissioner, T.C. Memo
1995-97; Brown v. Commissioner, T.C. Memo 1995-93; Hoppe v.
Commissioner, T.C. Memo 1994-635; Hamilton v. Commissioner,
T.C. Memo 1994-633.

                    9
Under Maryland law, Powell's monthly annuity from the New Pen-
sion Plan is calculated by taking into account his"average final com-
pensation" and his years of "creditable service," including the years
under the Teachers' Pension Retirement System. Upon transfer to the
New Pension System, Powell did not forfeit his right to receive future
monthly annuities, but rather agreed to receive a large single payment
followed by reduced monthly annuities. Moreover, any transferee
who had a contribution not eligible for refund would have the contri-
bution transferred into the transferee's New Pension System account,
"along with his or her service credits, salary level, and relevant past
information accumulated by the Retirement Agency." Conway v.
United States, 908 F. Supp. 292, 296 (D. Md. 1995); see Md. Code
Ann. art. 73B, § 32. In addition, as stated in Conway, "although intan-
gibles such as service credits and salary level may not have a definite
or immediately discernible pecuniary worth, they nonetheless repre-
sent real value in the calculation of future New Pension System bene-
fits." Conway, 908 F. Supp. at 296. Accordingly, when Powell
transferred from the Teacher's Pension System to the New Pension
System he received the balance to his credit in two parts, the Transfer
Refund payment at issue and the right to receive a monthly annuity
from the New Pension System upon retirement.

In the case at bar, Powell did not receive the final and complete
payout of his benefits at the time of transfer because he remained enti-
tled to receive monthly annuities. Therefore, the Transfer Refund
received by Powell did not constitute the entire balance to the credit
of his account. Accordingly, it is not a "lump sum distribution" within
the meaning of § 4980A. For this reason, we affirm the Tax Court's
determination that Appellant Powell is not entitled to an increased
exemption of $750,000 from the § 4980A tax penalty under
§ 4980A(c)(4).

C. Can Powell Obtain Preferential Ten Year Forward
Averaging Treatment?

Powell contends that he is entitled to preferential ten year forward
averaging treatment pursuant to § 402(e)(1) so as effectively to reduce
his income tax liability on the Transfer Refund.

                    10
Generally, the taxable portions of distributions from a qualified
plan are subjected to income tax for the year of receipt.14 However,
if a distribution is a "lump sum distribution," then it is eligible for
preferential ten year forward averaging treatment pursuant to
§ 402(e)(1).15 However, as discussed above, the Transfer Refund was
not a "lump sum distribution" within the meaning of 402(e)(4)(A).
Therefore, Powell is not entitled to the preferential forward averaging
treatment provided by § 402(e)(1).

For the foregoing reasons, the decisions of the Tax Court are, in all
respects,

AFFIRMED.
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14 Unless rolled over to another qualified plan or into an IRA.
15 The Tax Reform Act of 1986 replaced ten year forward averaging
with five year forward averaging of lump sum distributions made after
December 31, 1986. However, individuals (such as Powell) who were
fifty years old before January 1, 1986, are eligible for ten year forward
averaging.

                    11
