The opinion
T.C. Memo. 1998-336
UNITED STATES TAX COURT
ROBERT A. HALL AND LAVERNE M. HALL, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21526-95. Filed September 22, 1998.
Daniel A. Raas, for petitioners.
Christal W. Hillstead, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7443A(b) and Rules 180, 181, and 182.1
Respondent determined a deficiency in petitioners' 1992
Federal income tax of $662.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year in
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
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Petitioners concede that they received in 1992 interest
income of $58 that they failed to report on their Federal income
tax return and that they are liable for the 10-percent premature
distribution tax on retirement distributions to petitioner
Laverne Hall in 1992. Petitioners also concede that if certain
retirement account distributions to petitioner Robert A. Hall
(petitioner) are includable in income, they too are subject to
the 10-percent tax on premature distributions.
The issue remaining for decision is whether retirement
account distributions to Robert A. Hall (petitioner) are not
subject to tax because they constitute income derived from Indian
fishing-rights-related activity.
All of the facts have been stipulated and along with the
attached exhibits are incorporated herein by reference.
FINDINGS OF FACT
Petitioners resided in Ferndale, Washington, at the time
they filed their petition in this case.
Petitioners Robert A. Hall and Laverne M. Hall were in 1992
and are still members of the Swinamish Indian Tribal Community
(Swinamish) and the Lummi Indian Tribe (Lummi), respectively,
federally recognized Tribes of American Indians. The Swinamish
and Lummi Tribes are each signatories of the Treaty of Point
Elliot, Jan. 22, 1855, U.S.--Tribes of Indians in Wash.
Territory, 12 Stat. 927 (1859), in which both tribes reserved
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fishing rights at all of their usual and accustomed fishing
grounds and stations.2
From 1979 through 1992, petitioner was employed by the Lummi
as a full-time worker in the tribal fish hatchery. The parties
agree that petitioner's work at the fish hatchery is treaty
fishing-rights-related activity as that term is used in section
7873.
The parties further agree that in 1992 all employees of the
hatchery received, in addition to wages, the choice to have an
extra $160 per month paid for their benefit either into a health
plan or a retirement account. Employees could not receive the
monthly additional $160 amount except by choosing one of the two
offered options.
The parties have stipulated transcripts of petitioner's
account with the Capital Guardian Trust Company, Investment
Company of America (Guardian). The transcripts show that
petitioner's Guardian account was established in September of
1988 and that contributions to the account, accrual of interest
to and withdrawals from the account have continued through 1992.
Contributions to the account are denominated in the transcript as
"employee contribution". The account summaries of the
transcripts for the years 1988 through 1990 refer to account
2
See also United States v. Washington, 520 F.2d 676 (9th
Cir. 1975).
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contributions as "IRA CONTRIBS:". In 1992, petitioner's employer
paid $1,920 into the Guardian account.
The Guardian account in 1992 made three payments to
petitioner, $750, $915.11 and $759.25, totaling $2,424.36. The
1992 account summary for the Guardian account describes a
premature distribution of $2,424.36, of which $12.67 was Form
1099 dividends. The 1992 account summary lists "Form 5498" ("IRA
Contribution Information") total contributions of $1,920, and a
remaining account value of $155.
Petitioner was not yet 59 1/2 at the time he received the
retirement account distributions from Guardian and from a second
account with Prudential Insurance Company of America
(Prudential). In 1992, the Prudential account paid to petitioner
a $268 retirement account distribution.
Petitioners reported on their 1992 Federal income tax return
as IRA distributions includable in income the retirement
distribution to petitioner from Guardian. Petitioners did not
deduct any amount as an IRA deduction. Petitioners did not
report the retirement distribution from Prudential or compute the
10 percent tax on premature distributions from either account.
Respondent examined petitioners' return and made adjustments
including a determination that the Prudential distribution is
includable in gross income and that retirement distributions to
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petitioner from both the Prudential and Guardian accounts are
premature.
OPINION
Positions of the Parties
Petitioner argues that he should not have to include any of
the Prudential distribution in income and that he made a mistake
by including the Guardian distributions in income because
distributions from both accounts are exempt from taxation as
income derived by an Indian from fishing-rights-related activity
under section 7873.
Section 7873 provides in relevant part:
(a) In General.--
(1) Income and self-employment taxes.--No tax
shall be imposed by subtitle A on income derived--
(A) by a member of an Indian tribe
directly or through a qualified Indian
entity, or
(B) by a qualified Indian entity, from a
fishing rights-related activity of such
tribe.
(2) Employment taxes.--No tax shall be imposed by
subtitle C on remuneration paid for services performed
in a fishing rights-related activity of an Indian tribe
by a member of such tribe for another member of such
tribe or for a qualified Indian entity.
(b) Definitions.--For purposes of this section--
(1) Fishing rights-related activity.--The term
"fishing rights-related activity" means, with respect
to an Indian tribe, any activity directly related to
harvesting, processing, or transporting fish harvested
in the exercise of a recognized fishing right of such
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tribe or to selling such fish but only if substantially
all of such harvesting was performed by members of such
tribe.
(2) Recognized fishing rights.--The term
"recognized fishing rights" means, with respect to an
Indian tribe, fishing rights secured as of March 17,
1988, by a treaty between such tribe and the United
States or by an Executive order or an Act of Congress.
(3) Qualified Indian entity.--
(A) In general.--The term "qualified
Indian entity" means, with respect to an
Indian tribe, any entity if--
(i) such entity is engaged in
a fishing rights-related activity
of such tribe,
(ii) all of the equity
interests in the entity are owned
by qualified Indian tribes, members
of such tribes, or their spouses,
(iii) except as provided in
regulations, in the case of an
entity which engages to any extent
in any substantial processing or
transporting of fish, 90 percent or
more of the annual gross receipts
of the entity is derived from
fishing rights-related activities
of one or more qualified Indian
tribes each of which owns at least
10 percent of the equity interests
in the entity, and
(iv) substantially all of the
management functions of the entity
are performed by members of
qualified Indian tribes.
For purposes of clause (iii), equity interests owned by
a member (or the spouse of a member) of a qualified
Indian tribe shall be treated as owned by the tribe.
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(B) Qualified Indian tribe.--For
purposes of subparagraph (A), an Indian tribe
is a qualified Indian tribe with respect to
an entity if such entity is engaged in a
fishing rights-related activity of such
tribe.
The "temporary deposit" of income exempt from tax under
section 7873 into a retirement account, argue petitioners, does
not change the character of the funds. Therefore, they conclude,
distributions that represent a return of originally tax exempt
funds are not subject to tax. Petitioners make no argument,
however, that interest accumulated in an account is exempt when
withdrawn.
Respondent argues that section 7873 was intended by Congress
to exempt from income tax only the wages of native people derived
from fishing-rights-related activity, that the payments into the
Guardian account were in addition to wages, that the source of
the payments into the Prudential account is unknown, and that
even if the source of the funds contributed to the retirement
accounts initially rendered them tax exempt, the distributions
from the accounts are not.
Respondent's determinations are generally presumed correct.
Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Furthermore, every item of a person's gross income is subject to
Federal income tax unless there is a statute or some rule of law
that exempts the person or the item from gross income. HCSC-
Laundry v. United States, 450 U.S. 1, 5 (1981). Tax exemptions,
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including those affecting native peoples are not granted by
implication. If Congress intends to exempt certain income it
must do so expressly. Critzer v. United States, 220 Ct. Cl. 43,
597 F.2d 708 (1979), and cases cited therein.
Section 7873 Income
The parties agree that the wages earned in 1992 by
petitioner for his work for the Tribe are income derived
"directly or through a qualified Indian entity * * * from a
fishing rights-related activity". Sec. 7873(a)(1). Petitioner
alleges that he "designated $160 per month to be deducted from
his salary and contributed to his retirement accounts" in 1992
and that in prior years he contributed a portion of his earnings
to the Prudential account. But both parties have stipulated that
in 1992 the $160 monthly amount contributed to his Guardian
retirement account was "in addition to wages" and would not have
been available to petitioner as a cash payment; he had to chose
to have it contributed to either a health plan or a retirement
plan.
Despite respondent's argument to the contrary, section
7873(a)(1) provides that "income", not just wages,3 derived by a
member of an Indian tribe directly or through a qualified Indian
entity from a fishing-rights-related activity is not subject to
3
With respect to wages earned from services performed in a
fishing-rights-related activity, no employment tax is to be
imposed by subtitle C. Sec. 7873(a)(2).
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income tax. For purposes of section 7873, income derived from
"fishing rights-related activity" means income derived from
activity "directly related" to harvesting, processing,
transporting, or selling fish in the exercise of recognized
fishing rights of an Indian Tribe. Sec. 7873(b).
Special Provisions for Individual Retirement Accounts
To determine whether, under the facts of this case, the
"temporary deposit" of income exempt from tax into a retirement
account changes its character requires an examination of the
retirement plan provisions. Special tax provisions apply to a
"qualified retirement plan," as that term is used in section
4974(c), including an individual retirement account.
A trust created or organized in the United States that is
for the exclusive benefit of an individual or his beneficiaries
is an "Individual Retirement Account" (IRA) if it meets certain
statutory requirements under section 408(a). Any IRA is
generally exempt from income tax. Sec. 408(e). An individual is
generally allowed to deduct "qualified retirement contributions"
made for the taxable year. Sec. 219(a). The deduction is
limited to the lesser of $2,000 or the amount of compensation
includable in the taxpayer's gross income for the taxable year.
Sec. 219(b).
"[Q]ualified retirement contributions" include amounts paid
for the taxable year by or "on behalf of an individual" to an IRA
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for the individual's benefit. Sec. 219(e). Any amount paid by
an employer to an IRA "shall be treated as payment of
compensation to the employee", includable in gross income for the
taxable year, whether or not the payment is deductible under
section 219(a). Sec. 219(f)(5).
IRA Distributions Taxable as Annuities
An amount paid out of an IRA must generally be included in
gross income by the distributee in the manner provided under
section 72, annuities, as modified by section 408(d)(1) and (2).
An individual's gross income includes amounts received as annuity
payments. Sec. 61(a)(9). In general, section 72 amounts are
includable in income except to the extent they are considered to
be a reduction or return of premiums or other consideration paid.
Sec. 72(a) and (b); sec. 1.72-1(a), Income Tax Regs.
To determine the extent to which distributed amounts are a
reduction or return of premiums or other consideration paid,
section 72 distinguishes between "amounts received as an annuity"
and "amounts not received as an annuity". Sec. 1.72-1(b)-(d),
Income Tax Regs.
Amounts are "received as an annuity" if they meet the
requirements of section 1.72-2(b)(2) or (3), Income Tax Regs.,
including the requirement that the amounts be payable in periodic
installments at regular intervals. Any other amounts to which
section 72 applies are considered "amounts not received as an
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annuity". Sec. 1.72-1(b), Income Tax Regs. The transcript of
account shows that the payments received by petitioner were not
periodic or regular. Petitioner's payments were section 72
payments not received as an annuity.
Petitioners distributions were received before the section
72(c)(4) "annuity starting date". For payments not received as
an annuity, section 72(e)(2)(B) provides that, for distributions
received before the annuity starting date, the distributee is
entitled to exclude from income any part of the distribution that
is allocable to the "investment in the contract" as defined in
section 72(e)(6). Amounts allocable to income on the contract
are on the other hand, includable in gross income. Sec.
72(e)(2)(B), (5)(D), (8)(A) and (B). In order to determine the
investment in the contract, the premiums or other consideration
paid for the contract must be calculated. Sec. 72(e)(6).
Premiums or Other Consideration Paid
Under section 72(f), employees generally are given credit
only for nondeductible premiums or other consideration that they
have contributed for purposes of computing the "investment in the
contract" under section 72(e)(6).4 See Campbell v. Commissioner,
108 T.C. 54, 66 (1997); Patrick v. Commissioner, T.C. Memo. 1998-
30. Amounts, however, contributed by the employer are also to be
4
Under prior law, an individual would never have an
"investment in the contract" or "basis" in an IRA. See Campbell
v. Commissioner, 108 T.C. 54, 64-66 (1997).
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included as premiums or other consideration paid by the employee5
if the amounts were taxable to the employee when contributed by
the employer or:
(2) if such amounts had been paid directly to the
employee at the time they were contributed, they would
not have been includible in the gross income of the
employee under the law applicable at the time of such
contribution. [Sec. 72(f)(2).]
An example of such amounts is certain payments excludible
from income under section 911(a) that were contributed by an
employer before 1963. Sec. 1.72-8(a)(2), Income Tax Regs. But
the language of section 72(f) is clearly broad enough to include
other types of income not subject to taxation, such as income
exempt by reason of section 7873.
In the absence of legislative indications to the contrary,
we are required to apply statutory provisions as we find them in
accordance with their plain meaning. United States v. American
Trucking Associations, Inc., 310 U.S. 534, 543-544 (1940);
Campbell v. Commissioner, supra at 62. We find that we must
include all contributions made by the Tribe, which are
denominated "employee" contributions by the trustee of the
5
It does not appear that petitioner's IRA is a simplified
employee pension (SEP) under sec. 408(k). All employees of the
hatchery received the same amount, $160 a month, for contribution
to a health or pension plan. SEP's, among other requirements,
must have a formulary relationship between contributions and
compensation. Sec. 408(k)(3)(C), (k)(5).
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Guardian IRA, as petitioner's investment in the IRA contract.
Cf. Wimbish v. United States, 267 F. Supp. 597 (W.D. Ky. 1967).
Amounts Allocated to Investment and Income
Generally, for distributions of amounts not received as
annuities, before the annuity starting date, the amount of a
distribution allocable to the investment in the contract and thus
distributed tax free, is the portion of the amount received that
bears the same ratio to the amount received as the investment in
the contract bears to the account balance. Sec. 72(e)(8)(A) and
(B).
The operation of section 72(e)(8) is, however, modified in
the case of an IRA by section 408(d)(2). The latter section
requires for section 72 purposes that we treat all IRA's as one,
all distributions in 1992 as one distribution, and that we
compute the value, income, and investment in the contract as of
the end of 1992; the value of the contract includes the amount of
any distributions during the calendar year (flush language
following section 408(d)(2)(C)).
Petitioner has failed to provide any evidence as to the
source, year, or amount of the contributions to the Prudential
account. Without such evidence we cannot find that any amount
distributed to petitioner from the Prudential account is a return
of his investment in the account.
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We therefore find that under section 72, as modified by
section 408(d)(1) and (2), part of petitioner's retirement
account distributions represents a nontaxable return to him of
his investment in the contract and part represents accrued
income, which petitioner agrees is taxable to him.
Return of Contributions
Before we apply section 72 as modified by section 408(d)(1)
and (2), however, we must consider the effect of section
408(d)(4) and (5). Under these provisions, nondeductible amounts
contributed to an IRA for a taxable year, and later withdrawn,
are not treated as taxable distributions.6 Contributions
withdrawn by the individual by April 15 of the year following the
taxable year, for which no deduction is allowed with respect to
the contribution, are not taxable upon distribution. Sec.
408(d)(4); Childs v. Commissioner, T.C. Memo. 1996-267.
Petitioner was employed by the Tribe in Indian fishing-
rights-related activity. Payments to petitioner for such Indian
fishing-rights-related services were not includable in his gross
income. Sec. 7873. The contributions made on his behalf to
Guardian by the Tribe were made due to his Indian fishing-rights-
related services and are considered as "compensation" under
6
A contribution distributed before the due date of the
return must be accompanied by the amount of net income
attributable to such contribution which net income is includable
in gross income. Sec. 408(d)(4).
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section 219(f). Therefore, the additional $160 monthly
compensation was derived "directly or through a qualified Indian
entity * * * from a fishing rights-related activity". Sec.
7873(a)(1). All of petitioner's compensation for the year 1992
was derived from Indian fishing-rights-related activity. And
since none of petitioner's compensation for the year was
includable in gross income, all of petitioner's IRA contributions
for the year are nondeductible. Secs. 219(b), 408(o).
Contributions are deemed to have been made to an IRA on the
last day of the preceding taxable year if the contribution is
made for that taxable year and is made by the due date of the
return for the taxable year. Sec. 219(f)(3). The parties agree
that petitioner had $1,920 of IRA contributions paid for tax year
1992.
Since under section 408(d)(4) the distribution to petitioner
of nondeductible contributions paid during the taxable year7 is
not subject to section 72, we find that $1,920 of the total
distribution from the Guardian account of $2,424.36 in 1992 was a
7
Sec. 408(o)(4)(A)(ii) requires an individual who receives
any amount from an IRA for any taxable year to include certain
information on his tax return for the year. A taxpayer who
without reasonable cause fails to provide the prescribed
information form for designated nondeductible contributions may
be subject to a fine of $50. Sec. 6693(b)(2). This issue was
not raised by respondent.
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nontaxable return of contributions.8 A portion of the remaining
balance of $504.36 is an amount of net income attributable to the
contributions for the 1992 taxable year. See sec. 408(d)(4);
sec. 1.408-4(c)(2)(ii) and (iii), Income Tax Regs. This amount
is includable in gross income in 1992 and as the parties have
agreed, is subject to the 10 percent premature distribution tax
under section 72(t).
Distributions Subject to Section 72 Computation
The balance of $504.36, reduced by the amount of net income
attributable to withdrawn contributions for 1992, is subject to
the computation under section 72(e)(8) as modified by section
408(d)(1) and (2). After reduction by the amount of net income
attributable to withdrawn contributions, the balance of the
amount distributed to petitioner in 1992 that is not taxable is
determinable by the section 72(e)(8)(B) formula as modified by
section 408(d)(1) and (2):
Total Nondeductible Contributions1
x Distribution
Amount
Total IRA Account Balances + Distribution Amount
8
Respondent has published notice that when using the sec.
72(e)(8) fraction to determine the amount of a premature
distribution to be includable in income, "Neither the numerator
nor the denominator of the above equation shall include amounts
previously withdrawn pursuant to section 408(d)(4) of the Code."
Notice 87-16, 1987-1 C.B. 446, 452. Taxpayers are entitled to
rely on and the Internal Revenue Service states that it will be
bound by substantive and procedural guidance provided by notices
or announcements. Rev. Rul. 90-91, 1990-2 C.B. 262.
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1
Total nondeductible contributions means all contributions prior
to the distribution date minus amounts received before such date to
the extent excludible from gross income. Sec. 72(e)(6).
The remainder of petitioner's distribution after
determination of the nontaxable amount represents the payment to
him of income and as the parties have agreed is subject to the
10-percent premature distribution tax under section 72(t). We
direct that these computations be made by the parties and
submitted under Rule 155.
To reflect the foregoing,
Decision will be entered
under Rule 155.