                        T.C. Memo. 2003-192



                      UNITED STATES TAX COURT



                  JOSEPH W. DORN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 6240-00L.             Filed July 1, 2003.


     Joseph W. Dorn, pro se.1

     Timothy R. Maher, for respondent.


                 SUPPLEMENTAL MEMORANDUM OPINION

     COLVIN, Judge:   Petitioner filed the petition in this case

under section 6330(d) seeking our review of respondent’s



     *
       In Dorn v. Commissioner, 119 T.C. 356 (2002), we held that
we have jurisdiction under sec. 6330(d) to review respondent’s
determination to collect amounts by jeopardy levy relating to
petitioner’s 1987-89 tax years.
     1
       On April 7, 2003, David M. Berman and Paul F. Berman filed
a motion to withdraw as counsel for petitioner. That motion was
granted on April 9, 2003.
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determination to collect amounts by jeopardy levy relating to

petitioner’s 1987-89 tax years.    The sole issue remaining for

decision is whether respondent’s determination was an abuse of

discretion.    We hold that it was not.

     Section references are to the Internal Revenue Code as

amended.

                             Background

A.   Petitioner

     Petitioner resided in Naples, Florida, when he filed his

petition.    He was retired at the time of trial.   Before he

retired, petitioner and his brothers operated Dorn Paint &

Hardware Co, Inc., in Madison, Wisconsin.

     Petitioner’s former wife filed for divorce in the Circuit

Court of Dane County, Wisconsin, in 1984.    As a result of his

divorce in 1987, petitioner was ordered to transfer amounts from

his IRA, pension plan, and profit sharing accounts to his former

wife.

B.   Petitioner’s Nonfiling of Income Tax Returns and Notice of
     Deficiency

     Petitioner did not file income tax returns for tax years

1987-89.    Respondent issued a notice of deficiency to petitioner2

for those years, in which respondent determined, inter alia, that



     2
       The parties dispute whether petitioner received the notice
of deficiency for 1987-89. For reasons discussed in the opinion
below, we need not decide that issue.
                               - 3 -

petitioner had unreported income of $194,354 from pension

distributions in 1987.

C.   The Prior Proceedings Relating to Petitioner’s 1990-91 Tax
     Years

     Petitioner filed a timely Request for a Collection Due

Process Hearing, Form 12153.   Respondent held a hearing in this

case on May 1, 2000, and February 13, 2003.    Petitioner contended

at those hearings that he is not liable for tax on any of the

funds distributed from his pension plan because, he contended,

his former wife had received those funds under a qualified

domestic relations order (QDRO).    He also contended that taxes

had already been withheld from the pension distribution.

Petitioner had the opportunity at the hearing on February 13,

2003, to present evidence supporting his QDRO claim.    However, he

offered no evidence showing the amount of funds distributed by

the pension plan to his former spouse, and he did not explain why

the amount she was to receive under the court order ($135,881)

differed from the amount the Form 1099 shows the pension plan

distributed to petitioner ($194,354).

     Respondent prepared an initial report on May 22, 2000, and a

supplemental report on April 4, 2003, in which respondent

rejected petitioner’s QDRO claim.    Trial was held after issuance

of respondent’s first report and before issuance of respondent’s

second report.   At trial, petitioner did not offer any evidence

showing the amount of funds distributed by the pension plan to
                                - 4 -

his former spouse and did not explain why the amount she was to

receive under the court order differed from the amount the Form

1099 shows the pension plan distributed to petitioner.

                               OPINION

       Petitioner contends that (1) he did not receive the notice

of deficiency for 1987-89, (2) that his QRDO claim is an

appropriate spousal defense, and (3) that he is not taxable on

funds paid to his former wife from his pension plan because she

received those funds under a QDRO.

       To establish that petitioner is not taxable on the funds

distributed by his pension plan, petitioner must show, inter

alia, the amount of funds distributed by the plan to his former

spouse under the divorce decree, and that the divorce decree is a

qualified domestic relations order that gave his former spouse

the right to receive all or part of petitioner’s benefits under

the plan.    Sec. 414(p).

       Petitioner did not offer sufficient evidence at his section

6330(b) hearing or before this Court to show that he is entitled

to prevail here under issue (3), his QDRO claim.    Thus,

regardless of the outcome of issues (1) and (2), petitioner

cannot prevail.    Therefore, we need not consider issues (1) and

(2).
                              - 5 -

     We conclude that respondent’s determination to proceed with

collection as to petitioner’s 1987-89 tax liabilities was not an

abuse of discretion.



                                             Decision will be

                                        entered for respondent.
