CourtListener opinion 4330628

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T.C. Memo. 1996-292

 UNITED STATES TAX COURT

 GALEN J. SMITH, Petitioner v.
 COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 8945-95. Filed June 24, 1996.

 Galen J. Smith, pro se.

 Pamelya P. Herndon, for respondent.

 MEMORANDUM OPINION

 LARO, Judge: This case is before the Court on respondent's

motion for continuance of trial pursuant to Rule 1341 and

petitioner's motion for partial summary judgment under Rule 121.

 This case was originally set for trial on April 22, 1996, in

Albuquerque, New Mexico. Ten days before trial, respondent

issued a statutory notice of deficiency to petitioner's former

spouse. At the calendar call, respondent moved the Court to

 1
 Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect during the years at issue,
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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continue this case from the calendar and return it to the general

docket. Respondent seeks additional time to allow petitioner's

former spouse time to file a petition and eventually join these

proceedings. Petitioner has opposed respondent's motion and now

moves for partial summary judgment in his favor.

 Petitioner argues that respondent is estopped from

determining a deficiency against him due to her determination of

a deficiency against his former spouse for the same tax

liability. Petitioner contends that respondent, by her action of

determining a deficiency and issuing a notice of same to his

former spouse, has made an admission against interest as to who

is to bear the tax liability for various distributions made to

petitioner from his former spouse's qualified pension and

retirement plans. Petitioner maintains that respondent may not

take inconsistent positions against two taxpayers in separate

notices of deficiency with respect a single tax liability because

to do so necessarily undermines the factual basis upon which her

determinations are premised. Thus, petitioner claims that he is

entitled to summary adjudication in his favor because, as a

matter of law, there exists no issue of material fact with

respect to his tax liability arising from the distributions from

his former spouse's tax qualified plans by reason of respondent's

determination of a deficiency against his former spouse for the

same tax liability. Respondent objects to petitioner's motion,

and asserts that she may take an alternative, though

inconsistent, position against a second taxpayer in a separate
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notice of deficiency for the same tax liability. We agree with

respondent for the reasons set forth below, and shall grant

respondent's motion for continuance and deny petitioner's motion

for partial summary judgment.

 Background2

 Petitioner married Blythe Schroeder (Ms. Schroeder) on

June 13, 1981. Ms. Schroeder filed for divorce on May 2, 1988,

and the divorce was finalized on April 12, 1989. Contemporaneous

with this divorce decree, the State trial court issued a domestic

relations order concerning the division of Ms. Schroeder's

pension and retirement benefits. This domestic relations order

purports to meet the requirements of section 414(p) as a

qualified domestic relations order (QDRO). The State court

issued an additional such order with respect to Ms. Schroeder's

401(k) plan on May 12, 1989. Petitioner has challenged in both

State and Federal court the validity of the divorce decree,

arguing that the divorce decree is void for want of due process.

 During 1992, the year in issue, Aetna Life & Casualty

(Aetna), issued petitioner a check for $9,395 from

Ms. Schroeder's section 403(b) tax shelter annuity (TSA). Aetna

also disbursed $4,937 to petitioner from Ms. Schroeder's Aetna

individual retirement account. Petitioner also received a check

 2
 The facts presented below do not appear to be in dispute,
and are stated solely for the purposes of deciding the pending
motions, and are not findings of fact for this case. Fed. R.
Civ. P. 52(a); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994).
 - 4 -

from SunWest Bank of Albuquerque for $14,790 from Ms. Schroeder's

401(k) plan. At the time petitioner received these

distributions, petitioner had not attained age 59-1/2.

Petitioner did not roll these distributions over to another tax

qualified plan within the time period specified in sections

402(c), 403(a)(4), or 408(d)(3). Petitioner did not file an

Income Tax Return for the year in issue on or before the due

date. Respondent determined a deficiency in petitioner's Federal

income tax for the taxable year 1992 in the amount of $8,016,

together with additions to tax under section 6651(a) in the

amount of $2,004 and $349 under section 6654(a). In his

petition, petitioner challenges the validity of the QDROs and his

tax liability for the subject distributions.

 Analysis

A. Motion for Continuance

 Distributions from qualified plans are generally taxed to

the distributee in the year distributed. Sec. 402(a)(1). The

term \distributee\" as used in section 402(a)(1)