                         T.C. Memo. 2008-17



                       UNITED STATES TAX COURT



          DWIGHT S. & ANTONINA K. PLATT, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent

            HERBERT & CHRISTINE BANGS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 4467-06, 7221-06.      Filed January 31, 2008.



     W. Randolph Shump, for petitioners in docket No. 4467-06.

     Stuart Henry Levine, for petitioners in docket No. 7221-06.

     Bradley C. Plovan, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined the following defi-

ciencies in, and accuracy-related penalties under section
                                - 2 -

6662(a)1 on, petitioners’ respective Federal income tax for 2002:

         Petitioners    Deficiency         Accuracy-Related Penalty
Dwight S. Platt and       $3,531                     $706
  Antonina K. Platt
Herbert Bangs and          2,175                      435
  Christine Bangs

     We must decide whether certain payments that petitioner

Herbert Bangs (Mr. Bangs) made during 2002 to petitioner Antonina

Platt (Ms. Platt) are deductible or excludable from Mr. Bangs’

income for his taxable year 2002 and includible in Ms. Platt’s

income for her taxable year 2002.2      We hold that they are not.

                        FINDINGS OF FACT

     All of the facts in these cases, which the parties submitted

under Rule 122, have been stipulated by the parties and are so

found except as stated below.

     Petitioners in the case at docket No. 4467-06, Ms. Platt and

Dwight Platt (Mr. Platt), resided in Stevenson, Maryland, at the

time they filed the petition in that case.      Petitioners in the

case at docket No. 7221-06, Mr. Bangs and Christine Bangs (Ms.


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) in effect for the year at issue.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
     2
      Respondent made certain additional determinations in the
respective notices of deficiency that respondent issued to
petitioners in these cases, the resolution of which flows auto-
matically from our resolution of the determinations in those
respective notices that we address herein. See also infra note
33.
                               - 3 -

Bangs), resided in Ruxton, Maryland, at the time they filed the

petition in that case.

     On a date not disclosed by the record, Mr. Bangs and Ms.

Platt were married.   At all relevant times, including while Mr.

Bangs was married to Ms. Platt, Mr. Bangs participated in a

pension plan (Baltimore County pension plan) maintained by his

employer, Baltimore County, Maryland.   At those times, that was

the only pension plan in which Mr. Bangs participated.

     On March 2, 1983, Mr. Bangs and Ms. Platt divorced pursuant

to a decree of divorce (divorce decree) issued by the Circuit

Court for Baltimore County.   The divorce decree provided in

pertinent part:

          IT IS FURTHER ORDERED, that the Defendant shall
     pay to the Plaintiff, directly, as permanent alimony,
     the sum of Three Hundred Dollars ($300) per month
     effective October 1, 1982, payable until the death of
     either party or the remarriage of the Plaintiff, which-
     ever shall first occur, subject to the further order of
     the Court.

          IT IS FURTHER ORDERED, that the Defendant shall
     pay to the Plaintiff, as a monetary award, the sum of
     Thirty-Two Thousand Nine Hundred Dollars ($32,900),
     which sum shall be payable within 90 days of February
     1, 1983.[3]

          IT IS FURTHER ORDERED, that the aforesaid monetary
     award shall be reduced to judgment on May 1, 1983 and
     shall draw interest at the legal rate from such date.

         *        *      *      *       *       *        *



     3
      We shall refer to the second-ordered paragraph quoted above
as the divorce decree $32,900 lump-sum payment provision.
                                 - 4 -

          IT IS FURTHER ORDERED, that with respect to the
     Defendant’s pension, the Defendant shall pay to the
     Plaintiff, if, as, and when he receives each pension
     payment, that sum which is determined in accordance
     with the following formula:

          50 percent X (12 years and seven months of
               marriage ÷ by total years of employment).[4]

          IT IS FURTHER ORDERED, that if the Defendant
     voluntarily takes his pension as a lump sum, either
     before or after retirement, then Defendant shall, upon
     receipt of * * * said lump sum, pay to the Plaintiff
     the sum of Twenty-two Thousand Five Hundred Dollars
     ($22,500), with simple interest at the rate of ten
     (10) percent from July 1, 1983, to the date of payment.
     [Reproduced literally.]

     During 2002, Mr. Bangs received monthly payments from the

Baltimore County pension plan.    Pursuant to the divorce decree

provision in question, shortly after receiving each such monthly

payment, Mr. Bangs made the following monthly payments totaling

$8,803.875 (monthly payments at issue) on the dates indicated by

electronic transfers from a joint checking account that he and

Ms. Bangs maintained to a checking account of Ms. Platt:




     4
      We shall refer to the fourth-ordered paragraph quoted above
as the divorce decree provision in question.
     5
      The parties stipulated that during 2002 Mr. Bangs paid to
Ms. Platt $8,883 pursuant to the divorce decree provision in
question. That stipulation is clearly contrary to the facts that
we have found are established by the record, and we shall disre-
gard it. See Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181,
195 (1989). The record establishes, and we have found, that
during 2002 Mr. Bangs paid to Ms. Platt $8,803.87 pursuant to the
divorce decree provision in question.
                                 - 5 -

         Date of Payment                 Amount of Payment
            01/14/2002                         $728.91
            02/13/2002                          728.91
            03/13/2002                          728.91
            04/15/2002                          728.91
            05/13/2002                          728.91
            06/13/2002                          728.91
            07/15/2002                          728.91
            08/15/2002                          740.30
            09/16/2002                          740.30
            10/15/2002                          740.30
            11/15/2002                          740.30
            12/16/2002                          740.30

     Mr. Bangs and Ms. Bangs timely filed Form 1040, U.S. Indi-

vidual Income Tax Return (Form 1040), for their taxable year 2002

(Mr. Bangs’ return).6   In that return, Mr. Bangs claimed a deduc-

tion of $8,8837 for alimony.   Mr. Bangs did not issue to Ms.

Platt and did not file with the Internal Revenue Service any Form

1099 for a nominee distribution with respect to those payments.

     On January 18, 2006, respondent issued to Mr. Bangs a notice

of deficiency with respect to his taxable year 2002 (notice for

Mr. Bangs’ taxable year 2002).    In that notice, respondent

disallowed the alimony deduction that Mr. Bangs claimed in Mr.

Bangs’ return.   In the notice for Mr. Bangs’ taxable year 2002,



     6
      For convenience, we shall generally refer hereinafter only
to Mr. Bangs, and not to Ms. Bangs.
     7
      See supra note 5. The record does not disclose why Mr.
Bangs deducted as alimony $79.13 in excess of the $8,803.87 that
he paid to Ms. Platt during that year pursuant to that divorce
decree provision.
                                   - 6 -

respondent also determined that Mr. Bangs is liable for his

taxable year 2002 for the accuracy-related penalty under section

6662(a).

        Mr. Platt and Ms. Platt timely filed Form 1040 for their

taxable year 2002.8       In that return, Ms. Platt did not include in

income the $8,803.879 that she received from Mr. Bangs during

2002.

     On January 18, 2006, respondent issued to Ms. Platt a notice

of deficiency with respect to her taxable year 2002 (notice for

Ms. Platt’s taxable year 2002).       In that notice, respondent

determined that Ms. Platt received $8,88310 of alimony that is

includible in her income for that year.       In the notice for Ms.

Platt’s taxable year 2002, respondent also determined that Ms.

Platt is liable for her taxable year 2002 for the accuracy-

related penalty under section 6662(a).

                                  OPINION

     The parties submitted these cases fully stipulated under

Rule 122.       That the parties submitted these cases under that Rule

does not affect who has the burden of proof or the effect of a




        8
      For convenience, we shall generally refer hereinafter only
to Ms. Platt, and not to Mr. Platt.
        9
         See supra note 5.
        10
            See supra note 5.
                                 - 7 -

failure of proof.11   Rule 122(b); Borchers v. Commissioner, 95

T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir. 1991).

     In support of his argument that the monthly payments at

issue are deductible or excludable from his income and includible

in Ms. Platt’s income for the taxable year 2002, Mr. Bangs

advances several arguments.     We first address Mr. Bangs’ argument

that the monthly payments at issue constitute alimony under

section 71 and are deductible under section 215(a).    Ms. Platt

and respondent take the position that those payments are not

alimony under that section.12

     In advancing their respective positions on brief as to

whether the monthly payments at issue constitute alimony under

section 71, Mr. Bangs and Ms. Platt rely on section 71 as amended

by the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369,

sec. 422(a), 98 Stat. 795 (amended section 71).    Respondent

argues that amended section 71 does not apply to those payments.

We agree with respondent.13


     11
      The parties do not address sec. 7491(a). In any event, we
need not decide whether the burden of proof shifts to respondent
under that section. That is because resolution of the issue
presented here does not depend on who has the burden of proof.
     12
      Respondent in each of these cases is in essence a stake-
holder. On brief, however, respondent agrees with Ms. Platt’s
position.
     13
      DEFRA also amended sec. 215 (amended sec. 215). DEFRA,
Pub. L. 98-369, sec. 422(b), 98 Stat. 797. That amendment
applies with respect to (1) divorce and separation instruments
                                                   (continued...)
                               - 8 -

     Amended section 71 applies with respect to (1) divorce and

separation instruments executed after December 31, 1984, and

(2) any such instruments executed before January 1, 1985, but

modified on or after that date if the modification expressly

provides that amended section 71 applies to such modification.

DEFRA sec. 422(e), 98 Stat. 798.

     In his reply brief, Mr. Bangs argues that section 71 before

its amendment by DEFRA does not apply in the instant cases

because he and Ms. Platt “effectively stipulated” that amended

section 71 applies.14   We reject that argument.   We note ini-

tially that although Mr. Bangs and Ms. Platt take the position on

brief that amended section 71 applies in these cases, they did

not stipulate that that section applies.   Even if Mr. Bangs and


     13
      (...continued)
executed after Dec. 31, 1984, and (2) any such instruments
executed before Jan. 1, 1985, but modified on or after that date
if the modification expressly provides that amended sec. 215
applies to that modification. DEFRA sec. 422(e), 98 Stat. 798.
The parties do not address whether sec. 215 before its amendment
by DEFRA or amended sec. 215 applies in these cases. On the
record before us, we hold that sec. 215 before its amendment by
DEFRA, and not amended sec. 215, applies.
     14
      In his reply brief, Mr. Bangs also argues that amended
section 71 applies because “the Commissioner made the assessments
against both sets of taxpayers in order to avoid being ‘whip-
sawed’”. We reject that argument. That respondent made the
respective determinations at issue in order to avoid being
whipsawed is irrelevant to resolving whether sec. 71 before its
amendment by DEFRA or amended section 71 applies in these cases.

     In her reply brief, Ms. Platt does not address respondent’s
argument that sec. 71 before its amendment by DEFRA, and not
amended section 71, applies in these cases.
                                   - 9 -

Ms. Platt had stipulated that amended section 71 applies in these

cases, the Court is not bound by stipulations of law.      See, e.g.,

Thoburn v. Commissioner, 95 T.C. 132, 144 n.12 (1990).

     The Circuit Court for Baltimore County issued the divorce

decree on March 2, 1983.       The record does not establish that that

court modified that decree after that date.      On the record before

us, we hold that section 71 before its amendment by DEFRA, and

not amended section 71, applies in determining whether the

monthly payments at issue constitute alimony.

     In his reply brief, Mr. Bangs states:      “We would agree that

if the pre-Tax Reform Act of 1984 version of I.R.C. 71 [section

71 before its amendment by DEFRA] is applicable, the Disputed

Payments [monthly payments at issue] do not constitute alimony.”

Mr. Bangs thus concedes that if we were to hold that section 71

before its amendment by DEFRA applies, which we have, the monthly

payments at issue do not constitute alimony under that section.

Based on Mr. Bangs’ concession, we hold that the monthly payments

at issue do not constitute alimony under section 71 before its

amendment by DEFRA and are not deductible under section 215(a)

before its amendment by DEFRA.15

     We turn now to Mr. Bangs’ argument that Ms. Platt was the

owner of an interest in the Baltimore County pension plan since

the divorce decree ordered him to pay her “if, as, and when he



     15
          See supra note 13.
                                - 10 -

receives each pension payment, that sum which is determined in

accordance with the following formula:     50 percent X (12 years

and seven months of marriage ÷ by total years of employment).”

As a result, according to Mr. Bangs, the monthly payments at

issue are excludable from his income and includible in Ms.

Platt’s income for the taxable year 2002.     Ms. Platt and respon-

dent argue that Ms. Platt did not own an interest in the Balti-

more County pension plan.16    As a result, according to Ms. Platt

and respondent, the monthly payments at issue are includible in

Mr. Bangs’ income and excludable from her income for the taxable

year 2002.

     Petitioners in each of these cases agree, and respondent

does not dispute, that the Baltimore County pension plan consti-

tutes a qualified pension plan within the meaning of section

401(a).17    Moreover, none of the parties disputes that the Balti-


     16
          See supra note 12.
     17
       Sec. 401(a) provides in pertinent part:

     SEC. 401.     QUALIFIED PENSION, PROFIT-SHARING, AND STOCK
                   BONUS PLANS.

          (a) Requirements for Qualification.--A trust
     created or organized in the United States and forming
     part of a stock bonus, pension, or profit-sharing plan
     of an employer for the exclusive benefit of his employ-
     ees or their beneficiaries shall constitute a qualified
     trust under this section--

                  (1) if contributions are made to the trust by
             such employer, or employees, or both * * * for the
             purpose of distributing to such employees or their
                                                      (continued...)
                                 - 11 -

more County pension plan constitutes a governmental plan as

defined in section 414(d).18     Inexplicably, however, none of the

parties addresses section 402(a) in advancing their respective

positions as to whether the monthly payments at issue are

excludable from Mr. Bangs’ income and includible in Ms. Platt’s

income for the taxable year 2002.19       That section governs the


     17
          (...continued)
              beneficiaries the corpus and income of the fund
              accumulated by the trust in accordance with such
              plan;

                  (2) if under the trust instrument it is im-
             possible, at any time prior to the satisfaction of
             all liabilities with respect to employees and
             their beneficiaries under the trust, for any part
             of the corpus or income to be (within the taxable
             year or thereafter) used for, or diverted to,
             purposes other than for the exclusive benefit of
             his employees or their beneficiaries * * *

All references hereinafter to a qualified pension plan are to a
qualified pension plan within the meaning of sec. 401(a).
     18
      Sec. 414(d) defines the term “governmental plan” as “a
plan established and maintained for its employees by the Govern-
ment of the United States, by the government of any State or
political subdivision thereof, or by any agency or instrumental-
ity of any of the foregoing.” All references hereinafter to a
governmental plan are to a governmental plan within the meaning
of sec. 414(d).
     19
      Instead, in support of their respective positions as to
whether the monthly payments at issue are excludable from Mr.
Bangs’ income and includible in Ms. Platt’s income for the
taxable year 2002, the parties rely on sec. 61(a)(11) and on
cases (e.g., Pfister v. Commissioner, T.C. Memo. 2002-198, affd.
359 F.3d 352 (4th Cir. 2004), and Witcher v. Commissioner, T.C.
Memo. 2002-292) in which the Court based its respective holdings
on that section. Although sec. 61(a)(11) provides the general
rule that gross income includes income derived from pensions,
Congress provided a special rule in sec. 402(a) with respect to
                                                   (continued...)
                                   - 12 -

taxation of distributions from a qualified pension plan.         Section

402(a) provides that any amount distributed from a qualified

pension plan, including a governmental plan, is generally taxable

to the distributee under such a plan.

        In Darby v. Commissioner, 97 T.C. 51 (1991), the Court

addressed the meaning of the term “distributee” in section 402(a)

in the context of a qualified pension plan, which was not a

governmental plan (or any other qualified plan) that was not

subject to the so-called spendthrift provisions of section

401(a)(13).20       The Court held there that the term “distributee”

in section 402(a) ordinarily means the participant or the benefi-

ciary who is entitled under such a plan to receive a distribu-

tion.        Darby v. Commissioner, supra at 58.   In so holding,21 the


        19
      (...continued)
distributions from qualified pension plans. See Darby v. Commis-
sioner, 97 T.C. 51, 58 (1991). Unlike the instant cases, Pfister
and Witcher did not involve qualified pension plans. Those cases
involved Federal military retirement programs that are subject to
Federal statutes that do not apply in the instant cases. The
parties’ reliance on sec. 61(a)(11) and on Pfister and Witcher is
misplaced.
        20
      All references hereinafter to the spendthrift provisions
are to the provisions of sec. 401(a)(13) that, with certain
exceptions, prohibit the assignment and alienation of benefits
under a qualified pension plan.
        21
      The rationale on which the Court based its holding in
Darby v. Commissioner, supra, related in large part to Congress’
addition to the Code in 1984 of the provisions relating to
qualified domestic relations orders (QDRO provisions). Those
provisions include sec. 414(p), which defines the term “qualified
domestic relations order” (QDRO), and sec. 402(e)(1)(A) (origi-
                                                   (continued...)
                              - 13 -

Court rejected the taxpayer’s argument that the term

“distributee” in section 402(a) means the owner of an interest in

a qualified pension plan.   Id. at 66.




     21
      (...continued)
nally enacted as sec. 402(a)(9)), which governs the taxation of
distributions or payments that are made pursuant to a QDRO. As
discussed below, when Congress enacted the QDRO provisions in
1984, those provisions did not apply to governmental plans that
are not subject to the spendthrift provisions of sec. 401(a)(13).
See secs. 414(p)(9), 401(a); sec. 1.401(a)-13(a), Income Tax
Regs.; see also H. Rept. 101-247, at 1443 (1989).

     The legislative history of the QDRO provisions enacted in
1984 states in pertinent part:

          Generally, under present law, benefits under a
     pension, profit-sharing, or stock bonus plan (pension
     plan) are subject to prohibitions against assignment or
     alienation (spendthrift provisions. [sic]) * * *

          Several cases have arisen in which courts have
     been required to determine whether the * * * spend-
     thrift provisions apply to family support obligations
     (e.g., alimony, separate maintenance, and child support
     obligations). * * * There is a divergence of opinion
     among [those courts] * * *.

          *    *       *        *        *     *          *

                       Reasons for Change

          The committee believes that the spendthrift rules
     should be clarified by creating a limited exception
     that permits benefits under a pension, etc., plan to be
     divided under certain circumstances. In order to
     provide rational rules for plan administers [sic], the
     committee believes it is necessary to establish guide-
     lines for determining whether the exception to the
     spendthrift rules applies. * * *

S. Rept. 98-575, at 18-19 (1984), 1984-2 C.B. 447, 456.
                                 - 14 -

     A question arises as to whether the definition of the term

“distributee” in Darby v. Commissioner, supra, applies in the

instant cases, where the qualified pension plan in question is a

governmental plan that is not subject to the spendthrift provi-

sions of section 401(a)(13).22    We need not resolve that ques-

tion.     That is because, regardless of whether in the context of a

governmental plan, such as the qualified pension plan involved in

the instant cases, the term “distributee” in section 402(a) means

the participant or the beneficiary under such a plan, as the

Court held in Darby, or the owner of such a plan, as the parties

apparently argue here, on the record before us, we find that for

purposes of section 402(a) Mr. Bangs, and not Ms. Platt, was the

distributee under the Baltimore County pension plan.

     The parties do not dispute (1) that during the year at issue

Mr. Bangs, and not Ms. Platt, was a participant under the Balti-

more County pension plan and (2) that during that year Ms. Platt

was not a beneficiary of an interest in that pension plan.    We

thus consider only the parties’ disagreement over whether Ms.


     22
      In Powell v. Commissioner, 101 T.C. 489 (1993), the Court
set forth an exception to the general definition in Darby v.
Commissioner, supra, of the term “distributee” in sec. 402(a).
The Court held in Powell that that definition did not apply in a
situation governed by community property laws where the former
spouse’s “rights were acquired by her directly at the outset and
did not represent a transfer to her of rights which had previ-
ously accrued to [her husband]”. Id. at 497-498. Accordingly,
the Court further held in Powell that the former spouse was a
“distributee” under sec. 402(a) who was “taxable on her share of
the pension benefits” in question. Id. at 499.
                                - 15 -

Platt was the owner of an interest in the Baltimore County

pension plan.

     In support of their respective positions as to whether Ms.

Platt was the owner of an interest in the Baltimore County

pension plan, the parties rely on the divorce decree provision in

question.     That provision requires Mr. Bangs to pay an amount

determined pursuant to a formula stated therein “if, as, and

when” he receives a payment from the Baltimore County pension

plan.     Contrary to Mr. Bangs’ argument, the divorce decree

provision in question does not provide that Ms. Platt is the

owner of an interest in that plan.23     Nor has that provision been

construed to do so.     In fact, the Court of Special Appeals of

Maryland concluded that the divorce decree provision in question

granted nothing more than a monetary award to Ms. Platt.     See

Bangs v. Bangs, 475 A.2d 1214, 1223 (Md. Ct. Spec. App. 1984).

     In Bangs v. Bangs, supra, Mr. Bangs appealed from the

divorce decree involved in these cases.     In that appeal, Mr.

Bangs did not argue, as he does here, that the divorce decree

provision in question provided that Ms. Platt was the owner of an


     23
      As discussed supra note 19, Mr. Bangs’ reliance on Pfister
v. Commissioner, T.C. Memo. 2002-198, is misplaced because that
case involved a Federal military retirement program that was
subject to Federal statutes that do not apply in the instant
cases. Mr. Bangs’ reliance on Pfister also is misplaced because,
unlike the divorce decree involved in the instant cases, the
divorce decree involved in Pfister provided that the taxpayer in
that case was to “be owner of, and receive, one-half of husband’s
disposable retired or retainer pay”. Id.
                                  - 16 -

interest in the Baltimore County pension plan.     Instead, he

argued (1) that the Circuit Court for Baltimore County granted

Ms. Platt two monetary awards consisting of the payment ordered

under the divorce decree $32,900 lump-sum payment provision24 and

the payments ordered under the divorce decree provision in

question25 and (2) that the Circuit Court for Baltimore County

erred by refusing to place a “cap” or “ceiling” on the latter

payments.     Id. at 1222-1223.

     The Court of Special Appeals of Maryland agreed with Mr.

Bangs that the payments ordered under the divorce decree $32,900

lump-sum payment provision and under the divorce decree provision

in question were in the nature of a monetary award, id. at 1223,

but disagreed with Mr. Bangs that the Circuit Court for Baltimore

County had granted Ms. Platt two separate monetary awards under


     24
      The divorce decree $32,900 lump-sum payment provision
provided:

          IT IS FURTHER ORDERED, that the Defendant shall
     pay to the Plaintiff, as a monetary award, the sum of
     Thirty-Two Thousand Nine Hundred Dollars ($32,900),
     which sum shall be payable within 90 days of February
     1, 1983.
     25
          The divorce decree provision in question provided:

          IT IS FURTHER ORDERED, that with respect to the
     Defendant’s pension, the Defendant shall pay to the
     Plaintiff, if, as, and when he receives each pension
     payment, that sum which is determined in accordance
     with the following formula:

             50 percent X (12 years and seven months of
                  marriage ÷ by total years of employment).
                               - 17 -

those two provisions, id.   The Court of Special Appeals of

Maryland held that the Circuit Court for Baltimore County granted

Ms. Platt only one monetary award consisting of the payment

ordered under the divorce decree $32,900 lump-sum payment provi-

sion and the payments ordered under the divorce decree provision

in question.   Id. at 1222-1223.    The Court of Special Appeals of

Maryland also disagreed with Mr. Bangs’ argument that the Circuit

Court for Baltimore County erred by refusing to place a “cap” or

“ceiling” on the latter payments.     Id. at 1223.   According to the

Court of Special Appeals of Maryland, the Circuit Court for

Baltimore County had broad discretion and did not abuse that

discretion by determining a fixed percentage for Ms. Platt of the

future payments that Mr. Bangs was to receive from the Baltimore

County pension plan.   Id. at 1222-1223.

     The law of Maryland in effect at the time that the Circuit

Court for Baltimore County issued the divorce decree involved in

the instant cases provides further support for our finding that

the divorce decree provision in question does not provide that

Ms. Platt is the owner of an interest in the Baltimore County

pension plan.26   The law of Maryland in effect at that time, Md.


     26
      As discussed supra note 19, Mr. Bangs’ reliance on Witcher
v. Commissioner, T.C. Memo. 2002-292, is misplaced because that
case involved a Federal military retirement program that was
subject to Federal statutes that do not apply in the instant
cases. Mr. Bangs’ reliance on Witcher also is misplaced because,
unlike the State law involved in the instant cases, the State law
                                                   (continued...)
                                 - 18 -

Code Ann., Cts. & Jud. Proc. sec. 3-6A-05 (1980 & Supp.

1983)(repealed and recodified as Md. Code Ann., Fam. Law sec. 8-

205 by Acts 1984, ch. 296, secs. 1 and 2),27 did not authorize

Maryland courts to transfer ownership of an interest in a pension

plan as part of a divorce settlement.     See generally Klingenberg

v. Klingenberg, 675 A.2d 551, 555-556 (Md. 1996).      It was not

until 1986 that the legislature of the State of Maryland autho-

rized Maryland courts to transfer ownership of an interest in a

“pension, retirement, profit sharing, or deferred compensation



     26
      (...continued)
involved in Witcher authorized the court that issued the divorce
decree involved in that case to award an ownership interest in a
military pension as part of a divorce settlement. Id.
     27
      The law of Maryland in effect at the time that the Circuit
Court for Baltimore County issued the divorce decree involved in
the instant cases, Md. Code Ann., Cts. & Jud. Proc. sec. 3-6A-05
(1980 & Supp. 1983)(repealed and recodified as Md. Code Ann.,
Fam. Law sec. 8-205 by Acts 1984, ch. 296, secs. 1 and 2),
provided in pertinent part:

     [Sec.] 3-6A-05. Monetary award.

          *        *       *       *       *       *          *

                    (b) The court shall determine the value
              of all marital property. After making the
              determination, the court may grant a monetary
              award as an adjustment of the equities and
              rights of the parties concerning marital
              property, whether or not alimony is awarded.
              * * *

     In Deering v. Deering, 437 A.2d 883, 890 (Md. 1981), the
Court of Appeals of Maryland held under the above-quoted provi-
sion that “a spouse’s pension rights, to the extent accumulated
during the marriage, constitute a form of ‘marital property’”.
                              - 19 -

plan” as part of a divorce settlement.   Md. Code Ann., Fam. Law

sec. 8-205(a)(2)(i)(West 2007).28   See generally Klingenberg v.

Klingenberg, supra at 555-556.

     On the record before us, we find that Ms. Platt was not the

owner of an interest in the Baltimore County pension plan.    On

that record, we further find that, regardless of whether in the

context of a governmental plan, such as the qualified pension

plan involved in the instant cases, the term “distributee” in

section 402(a) means the participant or the beneficiary under

such a plan, as the Court held in Darby v. Commissioner, 97 T.C.


     28
      Md. Code Ann., Fam. Law, sec. 8-205(a)(West 2007) provides
in pertinent part:

          (a)(1) * * * after the court determines which
     property is marital property, and the value of the
     marital property, the court may transfer ownership of
     an interest in property described in paragraph (2) of
     this subsection, grant a monetary award, or both, as an
     adjustment of the equities and rights of the parties
     concerning marital property, whether or not alimony is
     awarded.

          (2) The court may transfer ownership of an inter-
     est in:

               (i) a pension, retirement, profit sharing, or
          deferred compensation plan, from one party to
          either or both parties;

               (ii) subject to the consent of any
          lienholders, family use personal property, from
          one or both parties to either or both parties; and

               (iii) subject to the terms of any lien, real
          property jointly owned by the parties and used as
          the principal residence of the parties when they
          lived together * * *
                                - 20 -

at 58, or the owner of an interest in such a plan, as the parties

apparently argue here, for purposes of that section, Mr. Bangs,

and not Ms. Platt, was the distributee under the Baltimore County

pension plan, unless the divorce decree qualifies under section

414(p) as a QDRO.

     The final argument that Mr. Bangs advances in support of his

position in these cases and that we consider now is that the

divorce decree involved in these cases qualifies under section

414(p) as a QDRO.   If the divorce decree were to qualify as such,

Ms. Platt would be an alternate payee29 under the Baltimore

County pension plan.   In that event, she would be treated for

purposes of section 402(a) as the distributee under that plan of

the payments to which she was entitled pursuant to the divorce

decree provision in question.    See sec. 402(e)(1)(A).

     We reject Mr. Bangs’ argument that the divorce decree

qualifies under section 414(p) as a QDRO.30   The QDRO provisions



     29
      Sec. 414(p)(8) defines the term “alternate payee” as “any
spouse, former spouse, child or other dependent of a participant
who is recognized by a domestic relations order as having a right
to receive all, or a portion of, the benefits payable under a
plan with respect to such participant.”
     30
      We note that the parties stipulated (QDRO stipulation):
“No ‘qualified domestic relations order’ (‘QDRO’) has been issued
to either Antonina K. Platt or Herbert Bangs either on March 2,
1983 or at any time thereafter.” None of the parties argues that
the QDRO stipulation means that the divorce decree involved in
the instant cases may not qualify under sec. 414(p) as a QDRO.
We shall independently address whether that divorce decree so
qualifies.
                                  - 21 -

that Congress enacted in 1984 did not apply to governmental

plans.       See sec. 414(p)(9); see also supra note 21.   In 1989,

Congress added section 414(p)(11) to the Code.31      Omnibus Budget

Reconciliation Act of 1989 (OBRA), Pub. L. 101-239, sec.

7841(a)(2), 103 Stat. 2427-2428.      Section 414(p)(11) provides

that “a distribution or payment from a governmental plan * * *

shall be treated as made pursuant to a qualified domestic rela-

tions order if it is made pursuant to a domestic relations order

which meets the requirement of clause (i) of paragraph (1)(A)” of

section 414(p).32      Section 414(p)(11) applies only with respect

to transfers of marital interests in governmental plans that

occur after December 19, 1989.      OBRA sec. 7841(a)(3), 103 Stat.

2428.


        31
      Congress added sec. 414(p)(11) to the Code in order “to
conform generally [the tax rules relating to transfers of inter-
ests in a governmental plan] to the tax rules applicable to other
qualified plans pursuant to the Retirement Equity Act.” H. Rept.
101-247, at 1443 (1989).
        32
      Generally, a domestic relations order qualifies under sec.
414(p) as a QDRO if that order (1) creates or recognizes the
existence of an alternate payee’s right to, or assigns to an
alternate payee the right to, receive all or a portion of the
benefits payable with respect to a participant under a plan, sec.
414(p)(1)(A)(i); (2) clearly specifies certain facts, such as the
name and last known mailing address of the participant and the
name and mailing address of the alternate payee, sec. 414(p)(2);
and (3) does not alter the amount or form of the plan benefits,
sec. 414(p)(3). With respect to governmental plans, however, a
domestic relations order qualifies under sec. 414(p) as a QDRO if
that order creates or recognizes the existence of an alternate
payee’s right, or assigns to an alternate payee the right, to
receive all or a portion of the benefits payable with respect to
a participant under a plan. See sec. 414(p)(11).
                              - 22 -

     The Circuit Court for Baltimore County issued the divorce

decree involved in the instant cases on March 2, 1983.   On the

record before us, we hold that section 414(p)(11) does not apply

to that divorce decree.   On that record, we further hold that the

divorce decree involved in the instant cases does not qualify

under section 414(p) as a QDRO and that Ms. Platt is not an

alternate payee for purposes of section 402(a).   Accordingly, we

further hold that Ms. Platt is not to be treated as a distributee

under the Baltimore County pension plan of the payments to which

she was entitled pursuant to the divorce decree provision in

question.   See sec. 402(e)(1)(A).

     Based upon our examination of the entire record before us,

we find that the monthly payments at issue are not deductible or

excludable from Mr. Bangs’ income and are not includible in Ms.

Platt’s income for the taxable year 2002.33

     We have considered all of the parties’ respective conten-

tions and arguments that are not discussed herein, and we find

them to be without merit, irrelevant, and/or moot.



     33
      On brief, respondent does not advance any arguments
in support of the respective determinations under sec. 6662(a) in
the notice for Mr. Bangs’ taxable year 2002 and in the notice for
Ms. Platt’s taxable year 2002. We conclude that respondent
has abandoned those determinations. Assuming arguendo that we
had not concluded that respondent abandoned those respective
determinations, on the record before us, we find that neither
petitioners in the case at docket No. 4467-06 nor petitioners in
the case at docket No. 7221-06 are liable for the accuracy-
related penalty under sec. 6662(a).
                        - 23 -

To reflect the foregoing,


                                 Decision will be entered for

                            petitioners in docket No. 4467-06.

                                 Decision will be entered for

                            respondent as to the deficiency and

                            for petitioners as to the accuracy-

                            related penalty under section

                            6662(a) in docket No. 7221-06.
