¶1concurring: While I agree with the majority that petitioner was not “separated from the service” within the meaning of section 402, I do not believe this conclusion requires us to sweep aside the now existing precedents on which taxpayers and the Service have relied. I would hold merely that since Philco-Del succeeded to all the rights and liabilities of Philco-Penn under the trust agreement, and petitioner remained in the employ of Philco-Del, there was no “separation from the service” as required under section 402(a) (2). E. N. Funkhouser, 44 T.C. 178, 184 (1965), affd. 375 F. 2d 1 (C.A. 4, 1967).
49 T.C. 419
Gittens v. Commissioner
Decided January 25, 1968
United States Tax Court · decided 1968-01-25
Incident to a corporate reorganization in which the assets and liabilities of one corporation were transferred to another in exchange for stock, a distribution was made to petitioner within 1 taxable… Held: the distribution to petitioner was not made on account of the employee's * * * separation from the service and therefore the amount received by him in 1962 is taxable as ordinary income and not as a long-term capital gain under sec. 402(a)(2), I.R.C. 1954.
Relies on E. N. Funkhouser and Estate of Nellie S. Funkhouser, Deceased, E. N. Funkhouser v. Commissioner of Internal Revenue · Funkhouser v. Commissioner
Good law ✅— No negative treatment on recordhow we know
Decision will be entered for the respondent · Decided 1968-01-25
How this case has been cited
Cited by 19 later decisions — most recently March 2003
4 federal appellate ·
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
View the full empirical analysis of this case →