                   T.C. Summary Opinion 2001-168



                      UNITED STATES TAX COURT



                MARY HOLLAND TRULL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.   6162-00S.                Filed October 23, 2001.


     Mary Holland Trull, pro se.

     Amy Dyar Seals, for respondent.



     PAJAK, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year in issue.

     Respondent determined a deficiency in petitioner’s 1996
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Federal income tax in the amount of $560.    This Court must decide

whether petitioner is entitled to a deduction in the amount of

$2,000 for a contribution to her individual retirement account

(IRA) for the taxable year 1996.

     Some of the facts in this case have been stipulated and are

so found.   Petitioner resided in Raleigh, North Carolina, at the

time she filed her petition.

     Petitioner Mary Holland Trull (petitioner) is a computer

programmer.    During 1996, petitioner was employed by Carolina

Power and Light Company (CP&L) until January 17, when she was

laid off.   The official termination date on CP&L records is March

20, 1996.   During her employment with CP&L, petitioner was

covered by an employer pension plan.    She was vested in the CP&L

pension plan.    Petitioner contributed $1,175.46 to the CP&L

pension plan in 1996.    Even though her employment was terminated,

petitioner did not forfeit her right to the pension plan funds.

After leaving CP&L, petitioner was employed by Wake County

Hospital System, Inc. (WCHS) beginning February 26, 1996.

Petitioner was not covered by the WCHS employer pension plan

during 1996.    Petitioner’s adjusted gross income for the year in

issue exceeded $35,000.

     During 1996, petitioner also made a contribution in the

amount of $2,000 to her IRA.    She deducted the $2,000 IRA

contribution on her 1996 Federal income tax return.    She filed
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her return as head of household.     Respondent disallowed the IRA

deduction.

     Petitioner contends that as soon as she ceased working for

CP&L and was not eligible to participate in a qualified

retirement plan with WCHS, she was entitled to the IRA deduction.

Petitioner further contends that “all contributions to that [CP&L

pension plan] in ‘96 were from their [CP&L’s] severance and

package deal.”    Petitioner also relies on language found in IRS

Publication 17 (IRS Pub. 17), “1996 Income Tax Guide For

Individuals”, which states that if a taxpayer receives benefits

from a previous employer’s plan and the taxpayer is not covered

under a current employer’s plan, then the taxpayer is not

considered covered by a plan.     Respondent contends that during

1996 petitioner was an active participant in an employer pension

plan regardless of the length of time she participated in the

plan.   Because petitioner was an active participant and her

adjusted gross income exceeded the applicable limit, respondent’s

position is that petitioner was not eligible to deduct a

contribution made to an IRA in 1996 under section 219(g).

     In general, under section 219(a), an individual is entitled

to deduct the amount contributed to an IRA.     The amount of the

deduction is limited to the lesser of $2,000 or an amount equal

to the compensation includable in a taxpayer’s gross income for

the year.    Sec. 219(b)(1).   In addition, the amount of the
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deduction may be limited if the taxpayer was, for any part of the

taxable year, an active participant.   Sec. 219(g)(1).   An “active

participant” is an individual who is an active participant in a

section 401 or other employer pension plan.    Sec. 219(g)(5).

This limitation results in total disallowance of the deduction

for a taxpayer filing as head of household when the total

adjusted gross income exceeds $35,000.   Sec. 219(g)(2) and (3).

As relevant herein, adjusted gross income is determined without

regard to any IRA deduction.   Sec. 219(g)(3)(A).

     An individual is an active participant in a defined benefit

plan if for any portion of the plan year she is not excluded

under the eligibility provisions of the plan.    Sec. 1.219-2(b),

Income Tax Regs.   The determination of whether an individual is

an active participant shall be made without regard to whether or

not such an individual’s rights under a plan are nonforfeitable.

Sec. 219(g)(5); Hildebrand v. Commissioner, 683 F.2d 57, 58 (3d

Cir. 1982), affg. T.C. Memo. 1980-532; Eanes v. Commissioner, 85

T.C. 168, 170 (1985).   If an employee makes “a voluntary or

mandatory contribution to * * * [an employer pension plan] such

employee is an active participant in the plan for the taxable

year in which such contribution is made.”     Sec. 1.219-2(e),

Income Tax Regs.

     CP&L’s pension plan was a Stock Purchase-Savings Pension

(401(k)) Plan which allowed contributions by the employee and
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matching contributions by the employer.    Section 401(a) includes

stock bonus plans, pension plans, and 401(k) cash and deferred

arrangement plans.   Sec. 401(a), (k).   Therefore, the CP&L

pension plan is a qualified plan under section 401(a).

     Petitioner’s 1996 Form W-2, Wage and Tax Statement, from

CP&L indicates that she participated in the CP&L pension plan

before her termination and that she made contributions which

totaled $1,175.46.   Petitioner concedes that any money she

contributed in the first weeks of 1996 before her termination

went into the funds “already in the [CP&L pension] Plan”, where

it remained and she received a benefit.    Petitioner was not

excluded from the eligibility provisions of the CP&L pension plan

before her termination.   Petitioner made contributions to, and

accrued benefits in, the CP&L pension plan during 1996.

     Petitioner’s reliance on IRS Pub. 17 is also misplaced.    The

language in IRS Pub. 17 on which petitioner relies states that if

a taxpayer receives benefits from a previous employer’s pension

plan and the taxpayer is not covered by a current employer’s

pension plan, then the taxpayer is not considered covered by a

plan.   This was not the case with petitioner because she did not

receive benefits from the CP&L pension plan during 1996.    In any

event, the authoritative sources of Federal tax law are in the

statutes, regulations, and judicial decisions, and not in such

informal publications.    Zimmerman v. Commissioner, 71 T.C. 367,
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371 (1978), affd. without published opinion 614 F.2d 1294 (2d

Cir. 1979).   It is the relevant language of the Internal Revenue

Code which must be followed.

     We find that petitioner was an active participant in an

employer pension plan and hold that, because her adjusted gross

income exceeded $35,000, she is not entitled to a deduction for

her 1996 contribution to an IRA.   Sec. 219(g)(1) and (2).

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
