                        T.C. Memo. 1998-154



                      UNITED STATES TAX COURT



    ESTATE OF MARTIN J. MACHAT, DECEASED, AVRIL GIACOBBI AND
              ERIC R. SKLAR, EXECUTORS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21573-96.                     Filed April 27, 1998.



     Richard S. Kestenbaum and Bernard S. Mark, for petitioner.

     Janet F. Appel and Donald A. Glassel, for respondent.


                        MEMORANDUM OPINION

     LARO, Judge:   The Estate of Martin J. Machat (the estate)

petitioned the Court to redetermine respondent's determination of

deficiencies in the amounts of $26,383 and $277,309 in its 1988

and 1989 Federal income tax, respectively, and additions thereto

under section 6651(a) in the respective amounts of $6,596 and

$69,327.
                                 - 2 -


     Following the estate's concession as to the 1988 and 1989

additions to tax, the remaining issue is whether the fund

transfers from M.J. Machat Management Corp. Pension Plan and

Trust (the Plan and Trust) to a temporary administrator were

includable in the estate's gross income upon receipt by the

temporary administrator.    We hold they were.   Unless otherwise

stated, section references are to the Internal Revenue Code in

effect for the years in issue.    Rule references are to the Tax

Court Rules of Practice and Procedure.

                             Background

     This case was submitted fully stipulated under Rule 122.

The stipulation of facts and the exhibits submitted therewith are

incorporated herein by this reference.     When the petition was

filed, Avril Giacobbi (Ms. Giacobbi) resided in London, England,

and Eric R. Sklar (Mr. Sklar) resided in Wantaugh, New York.

     Martin J. Machat (decedent) died of lung cancer on March 19,

1988, at the age of 67.    Decedent's last will and testament

(will), dated March 4, 1988, was propounded by Ms. Giacobbi, who

was decedent's companion at the time of his death.     After

decedent's death, his estranged wife Roslyn Machat (Ms. Machat)

brought suit to set aside a separation agreement entered into

between Ms. Machat and decedent on July 3, 1984.     Litigation was

also brought by Ms. Machat and decedent's and Ms. Machat's

children to deny probate of the will.     Since probate of
                               - 3 -


decedent's will was contested, on July 8, 1988, the New York

County Surrogate's Court, pursuant to N.Y. Surr. Ct. Proc. Act

section 902 (McKinney 1994), appointed Harvey E. Corn (Mr. Corn)

to serve as the estate's temporary administrator.

     Decedent's assets included a $1,082,292 interest in the Plan

and Trust, which had been established by M.J. Machat Management

Corp., effective August 28, 1978.   The Plan and Trust was a

qualified plan under section 401(a), and decedent was the sole

participant and the sole trustee at all times before his death.

The estate has not located a form designating a beneficiary of

decedent's interest in the Plan and Trust, and thus decedent's

interest therein is to pass under the terms of the Plan and Trust

document.   These terms are:

     In the event a Participant fails to designate a
     Beneficiary in writing, or the Beneficiary and the
     contingent Beneficiary predecease the Participant, the
     Participant's surviving spouse shall be deemed the
     Beneficiary. If there is no surviving spouse, the
     benefits shall be paid to the Participant's surviving
     issue per stirpes. If there are no surviving issue,
     the benefits shall be paid pursuant to the intestacy
     laws of the Participant's domicile.

     During decedent's life, the assets of the Plan and Trust

were held by Bankers Trust Co. of New York (custodian).   Shortly

after his appointment, Mr. Corn requested that the custodian

transfer the assets of the Plan and Trust to him.   The custodian

refused to transfer the assets until it received M.J. Machat

Management Corp.'s corporate resolution authorizing such an
                                - 4 -


action.    Mr. Corn then asked the judge presiding over the will

contest to direct the custodian to turn over the funds to

Mr. Corn, and the judge granted Mr. Corn's request on December

22, 1988.    The surrogate's court judge's order reads as follows:

     I direct the Financial Institution to turn over the
     funds held in the name of the Employer to the
     fiduciary. The fact that I am directing that the funds
     to be turned over to the fiduciary is not a
     determination of who shall ultimately be entitled to
     the funds. We are putting them there in order that
     they be placed in some interest-bearing accounts and so
     forth, and in order to enable the fiduciary to make
     payments.

In response thereto, the custodian made the following

distributions to Mr. Corn:    $91,902 on December 28, 1988; and

$485,000, $20,000, and $485,390 on January 12, March 30, and

April 20, 1989, respectively.

     Mr. Corn, in his capacity as the estate's temporary

administrator and fiduciary, filed the estate's 1988 and 1989

Fiduciary Income Tax Returns, Forms 1041, in March 1991.1   None

of the pension funds were included as gross income on either of

these returns.    As to both years, the estate attached a

disclosure statement acknowledging the temporary administrator's

receipt of the funds but asserting that the receipt of the funds

was merely a change in custodial agent and not a taxable

distribution.    The 1988 and 1989 tax returns did report interest

income earned on the funds.    Mr. Corn also filed the estate's

     1
          The estate is a cash basis taxpayer.
                               - 5 -


1990 and 1991 tax returns, which reported income derived from the

pension funds only to the extent that the assets formerly held in

the Plan and Trust were used for the estate's expenses ($295,447

and $367,460 in 1990 and 1991, respectively).   The pension funds

were used to pay the estate's tax liabilities and other

administration expenses including attorney's fees, temporary

administrator's fees, apartment rental and maintenance fees, real

estate taxes, and storage fees.   Some of the expenses paid from

the pension funds were made with the surrogate's court approval,

while others were made without the surrogate's court approval.

     In December 1994, after 5 days of trial, the New York County

Surrogate's Court's Preminger issued an order directing that

decedent's will be admitted to probate on January 5, 1995.   On

March 30, 1995, Ms. Giacobbi filed papers in the probate court of

Greenwich, Connecticut, seeking to have decedent's will admitted

to probate.   The will was accepted by the probate court, and

Ms. Giacobbi and Mr. Sklar were appointed coexecutors on or about

March 30, 1995.   The pension funds, along with decedent's other

assets, are the subject of continuing litigation.

     In separate notices of deficiency issued to each of the

coexecutors, dated August 14, 1996, respondent determined that

the 1988 and 1989 pension distributions were includable in the

estate's income when received, and not when expended, by the

temporary administrator.
                               - 6 -


                            Discussion

     We must decide whether the 1988 and 1989 distributions from

the Plan and Trust to the temporary administrator were taxable to

the estate in the years of receipt.    Respondent's determinations

are presumed correct, and the burden is on the estate to prove

the determinations wrong.   Rule 142(a); Welch v. Helvering,

290 U.S. 111 (1933).

     Generally, income is includable in a taxpayer's gross income

in the year of receipt under section 451(a).2   However, the

Congress has provided more specialized rules in the area of

employee plans, and where applicable, these rules govern instead

of the more general accounting rules identified under section

451(a).   Section 402(a)(1) provides in part:

     Except as provided in paragraph (4), the amount
     actually distributed to any distributee by any
     employees' trust described in section 401(a) which is
     exempt from tax under section 501(a) shall be taxable
     to him, in the year in which so distributed under
     section 72 (relating to annuities) * * *

The parties appear to be in agreement that the Plan and Trust

meets the requirements of section 401(a) and that there is a

trust forming a part of the Plan that is exempt from tax under




     2
       Sec. 451(a) provides in part: "The amount of any item of
gross income shall be included in the gross income for the
taxable year in which received by the taxpayer, unless, under the
method of accounting used in computing taxable income, such
amount is to be properly accounted for as of a different period."
                                 - 7 -


section 501(a).   That being so, distributions from the trust are

governed by section 402(a)(1).

     The estate argues that the transfers of funds to the

temporary administrator did not constitute distributions

includable in the estate's gross income in either 1988 or 1989.

The estate raises numerous arguments in support thereof.      First,

according to the estate, the funds were not distributed within

the meaning of section 402(a)(1) but instead merely transferred

from one custodial arrangement to another.      The estate argues

that section 402(a)(1) is inapplicable because there were no

distributions to a "distributee" within the meaning of section

402(a)(1).   Additionally, the estate claims that there were no

"distributions" because it was not in either actual or

constructive receipt of the funds.3      Citing New York law, the

estate claims that a temporary administrator is merely the alter


     3
       Under sec. 1.451-1(a), Income Tax Regs., "Under the cash
receipts and disbursements method of accounting, such an amount
is includible in gross income when actually or constructively
received." Sec. 1.451-2(a), Income Tax Regs., defines
constructive receipt as follows:

     Income although not actually reduced to a taxpayer's
     possession is constructively received by him in the
     taxable year during which it is credited to his
     account, set apart for him, or otherwise made available
     so that he may draw upon it at any time, or so that he
     could have drawn upon it during the taxable year if
     notice of intention to withdraw had been given.
     However, income is not constructively received if the
     taxpayer's control of its receipt is subject to
     substantial limitations or restrictions. * * *
                                   - 8 -


ego of the surrogate's court and that the transfers of funds from

the custodian to the temporary administrator were in essence

transfers to the surrogate's court.        Therefore, the estate argues

that there were no distributions to the estate, and it was in

neither actual nor constructive receipt of the funds.       Second,

even if there were deemed distributions to the estate, under the

claim of right and constructive receipt doctrines, the estate

contends that it did not receive the funds because the funds were

subject to substantial limitations or restrictions under New York

law.4       According to the estate, under New York law, a temporary

administrator's powers are limited to acts done for the

preservation of an estate pending resolution of litigation.

Hence, substantial limitations or restrictions are imposed on the

use of funds received by the temporary administrator.

        Respondent makes several arguments for including the

distributions in the estate's 1988 and 1989 gross income.       First,

respondent argues that the distributions were taxable to the

estate in the years of receipt because the funds were no longer

held by a qualified trust and there were distributions to a

"distributee" within the meaning of section 402(a)(1).       Second,

        4
        Under the "claim of right" doctrine, if a taxpayer
receives income under a claim of right and without restrictions,
the income is taxable in the year received, whether the taxpayer
sees fit to enjoy it, even though the taxpayer is not entitled to
retain the money, and even though the taxpayer may later be
adjudged liable to restore its equivalent. See North Am. Oil
Consol. v. Burnet, 286 U.S. 417, 424 (1932).
                               - 9 -


respondent argues that the distribution of decedent's pension was

income in respect of a decedent under section 691(a)(1)(A) and

thereby taxable to the estate, which acquired the right to

receive the amount.   Third, respondent argues that the estate was

in actual or constructive receipt of the income, and under the

claim of right doctrine, it must include the distributions in the

years of receipt.   Respondent contends that the estate's use of

the pension funds, via the temporary administrator's use of the

funds, was not subject to substantial restrictions for tax

purposes.

     We must first resolve whether the distributions fall within

section 402(a)(1) and are thereby covered by its rule.    The

estate argues that the temporary administrator is not a

"distributee" within the meaning of section 402(a)(1) and

therefore that the delivery of pension funds to the temporary

administrator does not constitute a taxable event.   Citing

Darby v. Commissioner, 97 T.C. 51, 58 (1991), the estate contends

that the term "distributee" is limited to employee/plan

participants or their beneficiaries; and because no beneficiary

has been determined, no distributee received the pension funds.

Respondent argues that the estate is the "distributee" of the

funds transferred from the custodian to the temporary

administrator Mr. Corn.
                              - 10 -


     Neither the Code nor the regulations define the term

"distributee" as used in section 402(a)(1).    The Employee

Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-406,

88 Stat. 829, and its antialienation provisions, along with

pertinent case law, supply significant insight into the correct

interpretation of the term "distributee".    ERISA was enacted to

establish "a comprehensive federal scheme for the protection of

pension plan participants and their beneficiaries."

American Tel. & Tel. Co. v. Merry, 592 F.2d 118, 120 (2d Cir.

1979).   It was intended to ensure that American workers "may look

forward with anticipation to a retirement with financial security

and dignity, and without fear that this period of life will be

lacking in the necessities to sustain them as human beings within

our society."   S. Rept. 93-127, at 13 (1974), 1974-3 C.B. (Supp.)

1, 13.   Promoting this goal, the Congress enacted protective

legislation including the antialienation rule.     ERISA section

1021(a), 88 Stat. 104, added section 401(a)(13), which requires

tax-qualified plans to provide "that benefits provided under the

plan may not be assigned or alienated."     This prohibition

generally precludes the plan from recognizing the rights of

creditors with respect to a participant's interest under the

plan.

     In the years following the enactment of ERISA, litigation

raised the issues of whether the antialienation provisions
                              - 11 -


applied to family support obligations and State community

property laws.   Subsequent amendments addressed these issues.

Sections 402(a)(9) and 414(p)(8), as enacted by the Retirement

Equity Act of 1984 (REA '84), Pub. L. 98-397, sec. 204(c)(1) and

(b), 98 Stat. 1448, 1445, provide that (1) if a qualified

domestic relations order (QDRO) designates the spouse, former

spouse, child, or other dependent of the plan participant as a

person who is to receive the benefits payable with respect to the

participant, then that payee is an "alternate payee" and (2) the

alternate payee is to be treated as the distributee for purposes

of determining taxability of the payments.   In this situation,

the alternate payee, and not the plan participant, is taxed on

the distributions.   The Tax Reform Act of 1986 (TRA '86), Pub. L.

99-514, sec. 1898(c)(1)(A), 100 Stat. 2951, modified section

402(a)(9), as enacted by REA '84, to provide that an alternate

payee would be the distributee only if the alternate payee were

the spouse or former spouse of the plan participant.   In summary,

section 402(a)(9) provides an exception to the general rule, and

where all statutory requirements are fulfilled, the alternate

payee is deemed the distributee.   Where a QDRO fails to meet the

specific requirements of section 414(p), section 402(a)(9) is not
                               - 12 -


applicable and the general rules of section 402(a)(1) and (13)

apply.5    See Smith v. Commissioner, T.C. Memo. 1996-292.

     Against this backdrop, several cases have addressed the

meaning of "distributee".    In Darby v. Commissioner, supra, which

dealt with a 1983 plan distribution, we held that a distribution

from a qualified profit-sharing plan pursuant to a provision in a

State court divorce decree was taxable in its entirety to the

husband-employee even though he paid a portion of the

distribution to his former wife in accordance with the decree.

On the basis of "the statutory matrix which the Congress

understood and modified in the Retirement Equity Act of 1984",

id. at 59, the Court concluded that "a distributee of a

distribution under a plan ordinarily is the participant or

beneficiary who, under the plan, is entitled to receive the

distribution."    Id. at 58 (emphasis added).   The Court stated the

following:

          A conclusion that "distributee" means "participant
     (or beneficiary) under the plan" appears to be
     consistent with Congress' understanding when it enacted
     REA '84 and TRA '86. We do not have to decide in the
     instant case whether that is the definitive or only
     meaning of "distributee". * * *

Id. at 66.    The Court also found that the term "distributee" is

not synonymous with either "recipient" or "owner", and that the




     5
          Sec. 402(a)(9) is now sec. 402(e)(1)(A).
                               - 13 -


person who receives the distribution is not automatically the

distributee.   Id. at 64-66.

     Interpreting Darby, the Court in Powell v. Commissioner,

101 T.C. 489, 498 (1993), stated that "an owner was not

necessarily a distributee and [that Darby] specifically observed

that its statement that a 'distributee' had to be a participant

or beneficiary was not an exclusive definition of that word."

Applying the law as modified by REA '84, the Court found that the

plan participant's former spouse was the "distributee" and

thereby taxable on her share of the pension benefits.      Id.

     As illustrated by the aforementioned cases, most, if not

all, of the case law interpreting the term "distributee" dealt

with whether or not a spouse or former spouse with a legal

interest in a participant's pension benefits is a distributee

under section 402(a)(1) and thereby responsible for paying the

taxes on receipt of a distribution.     A finding in each case

merely shifted tax liability between an employee/participant and

his or her spouse or former spouse.     It did not insulate all

parties from tax liability.

     The estate, relying on this case law, urges the Court to

adopt a novel interpretation which in effect would permit funds

to be distributed by a qualified plan without identifying any

distributee.   We decline to accept this interpretation.    We

conclude that the estate is a "distributee" within the meaning of
                              - 14 -


section 402(a)(1).   Mr. Corn, acting as the estate's temporary

administrator, took possession of the pension funds, and these

funds were immediately available for and were, in part, utilized

for the estate's benefit.   The estate was therefore an interim

beneficiary of these funds.   See Darby v. Commissioner, 97 T.C.

at 66-67 (distributee generally means plan participant or

beneficiary).

     Finding that the estate is a "distributee", we now address

whether the estate received a distribution within the meaning of

section 402(a)(1).   The estate argues that there were no

distributions in 1988 or 1989 because it was not in either actual

or constructive receipt of the funds.   Additionally, the estate

argues that the claim of right and constructive receipt doctrines

preclude a finding that the estate received income during the

years in issue.   Respondent argues that the estate was in actual

or constructive receipt of income since the distributions were

received by the temporary administrator on behalf of and for the

benefit of the estate.   Respondent contends that the temporary

administrator was the estate's agent and therefore his receipt of

the funds is equivalent to the estate's receipt of the funds.

According to respondent, the temporary administrator's agent

status is illustrated by his duty to file the estate's Federal

tax returns and pay estate administration expenses.
                             - 15 -


     Section 402(a)(1), as amended by section 314(c)(1) of the

Economic Recovery Tax Act of 1981 (ERTA), Pub. L. 97-34, 95 Stat.

172, 286, provides that a distributee is taxed on benefits under

a qualified retirement plan in the tax year in which those

benefits are "actually distributed".   Prior to the 1981

amendment, section 402(a)(1) provided that amounts held in an

employees' trust were taxable "when actually paid, distributed,

or when made available to the distributee."6   The phrase "when

made available" was deleted by ERTA section 314(c)(1) in order to

alleviate a significant administrative burden for qualified plans

which had undertaken to protect employees from taxation under

section 402(a)(1) by developing a complex array of restrictions

on an employee's right to make withdrawals from a qualified plan.

Staff of Joint Comm. on Taxation, General Explanation of the

Economic Recovery Tax Act of 1981, at 214 (J. Comm. Print 1981);

see Clayton v. United States, 33 Fed. Cl. 628, 636 (1995) ("prior

     6
       Sec. 1.402(a)-1(a)(5), Income Tax Regs., which has not
been amended to reflect the 1981 change, states: "If pension or
annuity payments or other benefits are paid or made available to
the beneficiary of a deceased employee or a deceased retired
employee by a trust described in section 401(a) which is exempt
under section 501(a), such amounts are taxable in accordance with
the rules of section 402(a) and this section." Sec. 1.402(a)-
1(a)(6)(i), Income Tax Regs., which has also not been amended to
reflect the 1981 change, states: "The total distributions
payable are includible in the gross income of the distributee
within one taxable year if they are made available to such
distributee and the distributee fails to make a timely election
under section 72(h) to receive an annuity in lieu of such total
distributions."
                              - 16 -


to the amendment, whenever the employee had an unrestricted right

to withdraw his plan benefits, the benefits would be taxable to

the employee in that year even though the employee had not

actually reduced the benefits to his possession"), affd. without

published opinion 91 F.3d 170 (Fed. Cir. 1996).

     Further insight into the meaning of the "actually

distributed" requirement of section 402(a)(1) is provided by

H. Conf. Rept. 97-215, at 239-240 (1981), 1981-2 C.B. 481, 503:

          Under the House Bill, benefits under a qualified
     plan (including deductible employee contributions and
     earnings thereon) are taxed only when paid to the
     employee or a beneficiary and are not taxed if merely
     made available. Of course, as under present law, if
     benefits are paid with respect to an employee to a
     creditor of the employee, a child of the employee,
     etc., the benefits paid would be treated as if paid to
     the employee.

     Given the aforementioned history of section 402(a)(1), we

conclude that the term "actually distributed" includes the

situation herein where funds were paid out of the tax-exempt

trust.   In amending section 402(a)(1), the Congress intended to

address situations where an employee could be taxed on pension

funds before their distribution.   The change was not directed at

situations where the funds were disbursed from the qualified

trust.   This conclusion is supported by the Congress' intent to

treat payments to an employee's creditors, etc., as if the

payments were made directly to the employee.   In this case, when

the plan disbursed these funds to the temporary administrator, a
                              - 17 -


distribution occurred.   The funds, upon receipt by the temporary

administrator, were no longer held by a qualified trust, and

there was an actual distribution under section 402(a)(1).

     Finally, we address the estate's argument that substantial

restrictions and limitations were placed on the temporary

administrator's use of the distributed funds and therefore, that

under the claim of right and constructive receipt doctrines, the

estate did not receive income in the years of the distributions.

Underlying the estate's argument is its position that the

temporary administrator is not an agent of the estate.   See

Maryland Cas. Co. v. United States, 251 U.S. 342, 346-347 (1920);

Wilson v. Commissioner, 12 B.T.A. 403, 405 (1928) ("It is a well

established principle of law that receipt by an agent is receipt

by the principal.").

     Before a 1993 change in New York law which broadened the

powers of a temporary administrator, temporary administrators

were empowered to perform the following functions:   Take personal

property into possession and preserve it; pay taxes; publish

notice for creditors; and any other actions the court ordered.

See N.Y. Surr. Ct. Proc. Act sec. 903 (McKinney 1994); see also

In re Barrett's Estate, 82 N.Y.S.2d 137, 142 (Surr. Ct. 1948) (a

temporary administrator's "powers are conferred and regulated by

statute"); In re Gross' Estate, 31 N.Y.S.2d 610, 611 (Surr. Ct.

1941) (a temporary administrator is a receiver of the court and,
                              - 18 -


in a literal sense, an alter ego of the court); In re Watson's

Estate, 205 N.Y.S. 380, 381 (Surr. Ct.) (a temporary

administrator represents not only the interest of those taking

under the will, but, in the case of rejection, the heirs at law

and next of kin), affd. 205 N.Y.S. 382 (App. Div. 1924).

     While we recognize that New York law explicitly prescribes

and limits a temporary administrator's authority, given the

nature of a temporary administrator's duties and, in this case,

the actions taken by him, the benefits of the temporary

administrator's receipt of the pension funds immediately inured

to the estate.   The pension funds were used to pay the estate's

tax liabilities and other administration expenses including

attorney's fees, temporary administrator's fees, apartment rental

and maintenance fees, real estate taxes, and storage fees.    The

economic benefit to the estate is not diminished by the fact

that, among other things, the temporary administrator lacked the

power to distribute any residual funds to the ultimate

beneficiary.   Cf. Sneed v. Commissioner, 220 F.2d 313 (5th Cir.

1955) (court imposed liability on the surviving spouse for income

tax in each of the years that the community income was collected

by the executor rather than some later year when distribution was

actually made to the widow herself), affg. 17 T.C. 1344 (1952);

see also Sproull v. Commissioner, 16 T.C. 244 (1951), affd.

per curiam 194 F.2d 541 (6th Cir. 1952); Moore v. Commissioner,
                               - 19 -


45 B.T.A. 1073 (1941).    Moreover, we think that the estate's

position results in an impermissible deferral of tax on the

distributions.    Under the estate's approach, so long as the

temporary administrator held the distributions, there was no tax

to pay on the principal, neither by the estate nor by anyone

else.    But these funds, upon receipt by him, were immediately

available to satisfy the estate's debts and expenses.    No

restriction was placed on the estate's use and enjoyment of these

funds that would warrant a postponement of the tax.    Cf. Grimm v.

Commissioner, 894 F.2d 1165, 1169 (10th Cir. 1990), affg. 89 T.C.

747 (1987).7   We therefore find that, for Federal tax purposes,

substantial restrictions and/or limitations were not placed on

the use of the distributed funds.

     For the aforementioned reasons, we sustain respondent's

determination and hold that the 1988 and 1989 fund transfers from

the Plan and Trust to the temporary administrator were includable



     7
        We also note that the estate's failure to report the
distributions as income in the years of receipt by the temporary
administrator is inconsistent with its treatment of income
generated from the distributions and its report of a substantial
portion of the distributions as income in the years the funds
were used to satisfy the estate's liabilities. In 1988 and 1989,
the estate filed tax returns reporting interest income derived
from the pension funds. In 1990 and 1991, the estate reported
the funds themselves as income to the extent that they were used
to pay the estate's expenses. Consistency, however misplaced,
dictates that the estate would not report any of the
distributions or income derived thereon as income until there was
a subsequent distribution to the ultimate beneficiary.
                             - 20 -


in the estate's gross income upon receipt by the temporary

administrator.

     We have considered all other arguments made by the parties

and found them to be either irrelevant or without merit.

     To reflect the foregoing,

                                      Decision will be entered for

                                 respondent as to the

                                 deficiencies in tax, and in

                                 accordance with the estate's

                                 concession for respondent as

                                 to the additions to tax under

                                 section 6651(a).
