Kute v. United States ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-22-1999
    Kute v. United States
    Precedential or Non-Precedential:
    Docket 99-3195
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
    Recommended Citation
    "Kute v. United States" (1999). 1999 Decisions. Paper 259.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/259
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    Filed September 22, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 99-3195
    WILLIAM T. KUTE and FRANCIS M. KUTE,
    Appellants
    v.
    UNITED STATES OF AMERICA
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civ. No. 98-00299)
    District Judge: Honorable Sylvia H. Rambo
    Submitted pursuant to Third Circuit Rule 34.1(a)
    September 17, 1999
    BEFORE: GREENBERG, SCIRICA, and RENDELL,
    Circuit Judges
    (Filed: September 22, 1999)
    Gary M. Lightman
    Eric C. Stoltenberg
    Lightman & Welby
    2705 North Front Street
    P.O. Box 911
    Harrisburg, PA 17108
    Attorneys for Appellants
    David M. Barasch
    United States Attorney
    Loretta C. Argrett
    Assistant Attorney General
    Teresa E. McLaughlin
    Annette M. Wietecha
    Donald B. Tobin
    Attorneys Tax Division
    United States Department of Justice
    Tax Division
    P.O. Box 502
    Washington, DC 20044
    Attorneys for Appellee
    OPINION OF THE COURT
    GREENBERG, Circuit Judge.
    I. INTRODUCTION
    This matter is before this court on appeal from an order
    entered on January 15, 1999, on the parties' cross motions
    for summary judgment in the district court in this tax
    refund case. The district court entered the order in
    accordance with its accompanying memorandum opinion.
    The district court had jurisdiction under I.R.C.S 7422(a)
    and 28 U.S.C. S 1346(a)(1). We have jurisdiction under 28
    U.S.C. S 1291. We exercise plenary review on this appeal,
    which involves only legal conclusions. See ACM Partnership
    v. Comissioner, 
    157 F.3d 231
    , 245 (3d Cir. 1998), cert.
    denied, 
    119 S.Ct. 1251
     (1999).
    The case arises out of the interplay between state and
    federal law and involves the application of the ten percent
    tax imposed by I.R.C. S 72(t) on a taxpayer on a nonperiodic
    distribution constituting an early withdrawal from a
    qualified I.R.C. S 401(a) retirement plan. The germane facts
    are not in dispute.1 In 1974, the Commonwealth of
    _________________________________________________________________
    1. While William T. Kute and Francis M. Kute, his wife, are the taxpayers
    and all income tax returns and proceedings involved here have been
    2
    Pennsylvania enacted the State Employees' Retirement
    Code (Retirement Code), 71 Pa. Cons. Stat. Ann.SS 5101-
    5956 (West 1990), which continued the earlier established
    State Employees' Retirement System (Retirement System)
    and the State Employees' Retirement Fund (Fund). See 
    id.
    SS 5102, 5932. A Board of Directors (Retirement Board)
    administers the Retirement System and the Fund. See 
    id.
    SS 5901-5931. The Retirement Board has the authority to
    adopt and promulgate rules and regulations for the uniform
    administration of the system. See 
    id.
     S 5902(h).
    In April 1987, the Fraternal Order of Police (FOP), Kute's
    bargaining agent, initiated collective bargaining procedures
    with the Commonwealth to obtain a successor agreement to
    its contract effective for 1986 through 1988. Inasmuch as
    the negotiations reached an impasse, the FOP invoked the
    binding arbitration provisions of 43 Pa. Cons. Stat. Ann.
    S 217.4(a) (West 1992). On February 17, 1988, the
    arbitration panel awarded a change in pension benefits to
    Pennsylvania state troopers with at least 20 years of service
    who retire on or after July 1, 1989, eliminating any
    requirement that a trooper attain a specific age before
    retiring. The award further provided that in lieu of the
    standard single life annuity provided under 71 Pa. Cons.
    Stat. Ann. S 5702(a)(1), a trooper retiring after at least 20
    years of service was entitled to receive an annuity of 50%
    of his highest yearly salary and that a trooper retiring after
    at least 25 years of service was entitled to receive an
    annuity of 75% of his highest yearly salary. The award also
    provided that if a court invalidated the pension benefit
    increase it would be replaced by a $1,000 pay increase with
    appropriate adjustments to reflect rank differential
    provisions. The parties refer to the award as the DiLauro
    Award in recognition of the chairperson of the arbitration
    panel.
    The Commonwealth judicially challenged the DiLauro
    Award on the ground that 71 Pa. Cons. Stat. Ann.S 5955
    _________________________________________________________________
    joint, as a matter of convenience we refer to William T.   Kute as the sole
    taxpayer. We note that the complaint recites that Kute's   wife's name is
    "Frances." Nevertheless, we refer to her as "Francis" in   accordance with
    the caption used in the district court pleadings in this   case.
    3
    barred collective bargaining over pension benefits. The
    Supreme Court of Pennsylvania, however, upheld the
    award. See Commonwealth of Pennsylvania v. State
    Conference of State Police Lodges of the Fraternal Order of
    Police, 
    575 A.2d 94
    , 97 (Pa. 1990) ("Fraternal Order of
    Police"). In particular, the court held that the Retirement
    Code "prohibits only collective bargaining agreements from
    determining pension rights" but "does not prohibit
    bargaining over pension benefits [nor] pension benefits from
    being affected by arbitration awards." Id. at 96-97. The
    court further concluded that the award was "a mandate to
    the legislature to enact whatever legislation [was] necessary
    to implement or fund the arbitration award." Id. at 97.
    In response to Fraternal Order of Police, the Retirement
    Board voted to implement the DiLauro Award as follows:
    The awarded benefits of 50% of the highest year's
    salary after 20 years of service or 75% of the highest
    year's salary after 25 years of service shall be inserted
    into the Retirement Code structure in lieu of the
    standard single life annuity for purposes of calculating
    a withdrawal or superannuation annuity under Section
    5702(a)(1).
    The resolution further provided that "[a]ll other [Retirement]
    Code benefits remain in full force and effect and all optional
    benefit payment plans . . . remain in effect."
    The legislature then amended section 5955, effective
    August 5, 1991, to provide in relevant part:
    Regardless of any other provision of law, pension rights
    of State employees shall be determined solely by this
    part or any amendment thereto, and no collective
    bargaining agreement nor any arbitration award
    between the Commonwealth and its employees or their
    collective bargaining representatives shall be construed
    to change any of the provisions herein, to require the
    [Retirement Board] to administer pension or retirement
    benefits not set forth in this part, or otherwise require
    action by any other government body pertaining to
    pension or retirement benefits or rights of State
    employees. Notwithstanding the foregoing, any pension
    or retirement benefits or rights previously so established
    4
    by or as a result of an arbitration award shall remain
    in effect after the expiration of the current collective
    bargaining agreement between the State employees so
    affected and the Commonwealth.
    71 Pa. Cons. Stat. Ann. S 5955 (West Supp. 1999)
    (emphasis added). In 1992, after nearly 30 years of service
    as a state trooper, Kute retired at the age of 51 years, and
    became eligible to receive retirement benefits.
    Kute elected an alternative annuity option (Option 4)
    under 71 Pa. Cons. Stat. Ann. S 5705(a)(4)(iii), which was
    the actuarial equivalent of the maximum single life annuity
    provided by section 5702. Under Option 4, a portion of the
    retirement benefit (not in excess of the total accumulated
    deductions standing to the member's credit) may be paid as
    a lump sum, and the balance of the present value of the
    maximum single life annuity is paid as an annuity.
    Consequently, Kute received a monthly retirement benefit of
    $3,132.42 and a one-time payment of $49,607.13, as well
    as post-termination interest of $385.20. The $49,607.13
    payment was composed of nontaxable member
    contributions of $13,593.94, taxable member contributions
    of $19,079.34, and interest on the contributions of
    $16,933.90. The ten percent tax on a portion of the
    payment of $49,607.13 is at issue here.
    On his 1992 federal income tax return Kute reported and
    paid the ten percent additional tax in the amount of $3,700
    under I.R.C. S 72(t), attributable to the distribution of
    $36,998 in taxable member contributions and interest.
    Kute then filed an administrative claim for refund of the
    additional tax. The IRS disallowed the claim, and Kute then
    brought this timely suit for refund.2
    The parties thereafter submitted a stipulation of
    uncontested material facts and exhibits and served and
    filed cross-motions for summary judgment. The exhibits
    _________________________________________________________________
    2. In its brief, the government points out that the sum of the taxable
    member contributions of $19,079.34 and interest of $16,933.90 was only
    $36,013.24. We also note that there seem to be some other de minimus
    numerical discrepancies in the numbers involved. No further mention of
    these problems appears in the briefs and thus we do not deal with them.
    5
    included a declaration of Dale Everhart, Assistant Executive
    Director of the Retirement System, setting forth that the
    IRS has treated the Retirement System as a qualified plan
    under I.R.C. S 401(a) since at least 1982 and that because
    the IRS has treated the Retirement System as a qualified
    plan, the Retirement System had not requested a
    determination letter from the IRS regarding its status as a
    qualified plan. Kute does not contest this point on this
    appeal.
    Kute argued in the district court that I.R.C. S 72(t) did
    not apply to his lump sum one-time distribution. In this
    regard, he contended that the section applies only to
    distributions from "qualified plans" under I.R.C. S 401(a), so
    that in his view the tax was not applicable as his
    distribution came from the DiLauro Award rather than from
    the Retirement System. The government argued that the
    payment fell within I.R.C. S 72(t) as it was from a qualified
    plan and resulted from Kute's election of an alternative
    annuity option provided in the Retirement Code.
    The district court granted the government's motion for
    summary judgment, holding that I.R.C. S 72(t) applied to
    the distribution. The court rejected Kute's assertion that
    the arbitration award created a benefit distinct from the
    Commonwealth's qualified pension plan. The district court
    held that the DiLauro Award was integrated into the
    Commonwealth's qualified pension plan. It pointed out that
    the Pennsylvania Supreme Court had determined that the
    arbitration board had the authority to issue an award
    affecting police retirement benefits and that the award was
    "a mandate to the legislature to enact whatever legislation
    [was] necessary to implement or fund the arbitration
    award." The district court further noted that the legislature
    had recognized the award when it amended section 5955 of
    the Retirement Code prospectively to prohibit arbitration
    awards from amending the Retirement Code by including
    language stating that "any pension or retirement benefits or
    rights previously so established by or as a result of an
    arbitration award shall remain in effect after the expiration
    of the current collective bargaining agreement between the
    State employees so affected and the Commonwealth." 71
    Pa. Cons. Stat. Ann. S 5955.
    6
    The district court concluded that, in upholding the
    DiLauro Award, "the Pennsylvania Supreme Court
    determined that pension benefits under the Retirement
    Code could be modified by an arbitration award governing
    the contract between the Commonwealth and the state
    police." The court further observed that "[p]ursuant to the
    terms of the [Retirement] Board resolution, the increased
    pension benefits were ``inserted' into the Retirement Code."
    The court also noted that Kute's lump sum payment was
    made pursuant to an option provided under the Retirement
    Code. See 71 Pa. Cons. Stat. Ann. S 5705(a)(4)(iii).
    The court rejected Kute's argument that his retirement
    payments must be allocated between amounts received
    under the arbitration award and amounts received under
    the Retirement Code, as it concluded that Pennsylvania
    State Troopers Ass'n v. Pennsylvania State Employees'
    Retirement Board, 
    677 A.2d 1329
    , 1330 (Pa. Commw. Ct.
    1996), alloc. denied, 
    689 A.2d 237
     (Pa. 1997), prohibited
    such a result. The court determined that, under that
    decision, the arbitration award and formulas replaced the
    other benefits to state troopers under the Retirement Code
    and were not separate from benefits payable under the Code.3
    II. DISCUSSION
    On this appeal, Kute summarizes his argument as
    follows. While he recognizes that the Retirement System is
    treated as a qualified retirement plan under I.R.C. S 401(a),
    he contends that his lump sum pension benefit was not
    attributable to that system, but rather was derived from the
    DiLauro Award, which eliminated any age requirement for
    pension eligibility and provided that a trooper with 20 years
    of service was eligible for a pension benefit in an amount
    equal to 50% of his highest year's salary, and that a
    trooper, such as Kute, retiring with 25 years of service was
    eligible for an annuity equal to 75% of his highest year's
    _________________________________________________________________
    3. The district court also rejected Kute's assertion that the payments at
    issue did not flow from a qualified plan because their source was the
    State Police benefit account established by 71 Pa. Cons. Stat. Ann.
    S 5936, rather than the Retirement Fund itself. Kute does not challenge
    this holding on this appeal.
    7
    salary. The award further provided that should the pension
    increase be judicially overturned, it would be replaced by
    an across-the-board pay increase of $1,000. This award4
    affected Kute's annual pension amount, the timing of when
    that amount is due, and the timing and amount of the
    return of his contributions. As such, the pension benefits
    were derived from the DiLauro Award rather than from the
    Retirement System. The Retirement Code makes no
    reference to the pension benefit under which he retired.
    While those benefits were inserted into the Retirement
    Code's structure for ease of administration, the award as
    opposed to the Retirement Code established them.
    Moreover, the legislature never amended the Retirement
    Code to add the benefits. Thus, the district court, in Kute's
    view, erred in determining that the lump sum amount was
    taxable under I.R.C. S 72(t).
    As we have indicated, we are concerned here with a
    qualified pension plan under I.R.C. S 401(a). Under I.R.C.
    S 402(a)(1) (now I.R.C. S 402(a)), an amount distributed is
    taxable to the distributee in the year in which it is
    distributed under I.R.C. S 72. I.R.C. S 72(a) provides that in
    general gross income includes any amount received as an
    annuity, but I.R.C. S 72(b) excludes amounts attributable to
    the taxpayer's investment in the contract. While a plan can
    seek an advance determination from the IRS that it is
    qualified under I.R.C. S 401(a), it is not required to do so.
    See Cornell-Young Co. v. United States, 
    469 F.2d 1318
    ,
    1320 (5th Cir. 1972). In this case, as we have indicated, the
    Commonwealth has not sought a determination that the
    plan is qualified but no one has challenged that it has that
    status. While we need not set forth in detail the additional
    tax implications of a plan being qualified, we do point out
    that a qualified plan gives employees the benefit of deferring
    taxes until when they receive distributions from the plan.
    There are, however, limitations on the tax advantages of
    an I.R.C. S 401(a) plan intended to discourage early
    withdrawals. In particular, as effective in 1992, and as
    _________________________________________________________________
    4. In his brief Kute indicates that the "pension benefit" had these
    consequences, br. at 10, but we believe he is referring to the DiLauro
    Award.
    8
    germane here, I.R.C. S 72(t)(1) provided that the tax on any
    amount includable in gross income received from a
    qualified plan shall be increased by an amount equal to ten
    percent of that amount, except for distributions made on or
    after the date on which the employee attains age 59. There
    is, however, a restriction on the imposition of the additional
    tax, as the tax does not apply to part of a series of
    substantially equal periodic payments (not less frequently
    than annually) made for the life or life expectancy of the
    employee. See I.R.C. S 72(t)(2)(A)(iv). Kute, of course, began
    receiving the monthly payment long before he reached 59
    years of age, but by reason of I.R.C. 72(t)(2)(A)(iv), his
    monthly payments have not been subject to the additional
    tax.
    The lump sum payment, however, is another matter. As
    we have stated, Kute concedes that the plan is qualified.
    Moreover, he does not contend that an exception to the
    requirement for the additional tax is applicable. Instead, he
    contends that the distribution, rather than being from a
    qualified plan, was attributable to the DiLauro award so
    that I.R.C. S 72(t) was simply not applicable to it.
    The district court rejected that argument and so do we as
    it does not conform to the realities of the situation. See,
    e.g., Geftman v. Commissioner, 
    154 F.3d 61
    , 68 (3d Cir.
    1998). In Fraternal Order of Police the Supreme Court of
    Pennsylvania held that the pension benefits due to state
    troopers could be modified by an arbitration award. See
    575 A.2d at 96-97. Then the Retirement Board, pursuant to
    its authority to adopt rules and regulations, 71 Pa. Cons.
    Stat. Ann. S 5902(h), passed a resolution on September 26,
    1990, to implement the award. The resolution provided that
    the increased benefits would be "inserted into the
    Retirement Code structure," and that "[a]ll other Code
    benefits remain in full force and effect and [that] all
    optional benefit payment plans . . . remain in effect."
    Moreover, the Retirement Board's resolution expressly
    inserted the DiLauro Award "into the Retirement Code
    structure."
    There can be no doubt that the Retirement Board had the
    authority to implement the changes it did without further
    legislative action as the Commonwealth Court in
    9
    Pennsylvania State Troopers Ass'n upheld the Retirement
    Board's action. See 
    677 A.2d at 1332
    . Furthermore, the
    legislature, which apparently was dissatisfied with the
    DiLauro Award, amended 71 Pa. Cons. Stat. Ann. S 5955 to
    provide, but only prospectively, that the Retirement Code
    alone would be the source of state employees' pension
    rights. But at the same time it effectively ratified the
    DiLauro Award because amended section 5955 provides
    that "[n]otwithstanding the foregoing, any pension or
    retirement benefits or rights previously so established by or
    as a result of an arbitration award shall remain in effect
    after the expiration of the current collective bargaining
    agreement between the State employees so affected and the
    Commonwealth."
    Kute himself demonstrated by his actions that he
    received the lump sum payment from a qualified plan as he
    elected to obtain the benefit pursuant to Option 4 of the
    Retirement Code, which provides that an employee may
    receive a portion of his benefit in that form. Nothing in the
    DiLauro Award even mentions such an option, as the award
    dealt only with periodic payments. Overall, we are satisfied
    that the district court clearly reached the correct result.
    III. CONCLUSION
    For the foregoing reasons the order for summary
    judgment entered January 15, 1999, will be affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    10