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UNITED STATES v. JOHNSON

No. 20500.

331 F.2d 943 (1964)

UNITED STATES of America, Appellant, v. Ophelia JOHNSON and Ophelia R. Johnson, as Executrix under the Last Will and Testament of Clifford L. Johnson, Deceased, Appellees.

United States Court of Appeals Fifth Circuit.

May 6, 1964.

Attorney(s) appearing for the Case

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., David O. Walter, Ralph A. Muoio, Attys., Dept. of Justice, Washington, D. C., John W. Mobley, Asst. U. S. Atty., for appellant.

Vincent F. Kilborn, Mobile, Ala., for appellees.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

The problem this tax case presents results from the termination of an employee retirement plan incident to a change of stock ownership of the corporate employer. Section 402(a) (2) of the Internal Revenue Code of 1954 provides that a lump-sum distribution from a qualified employees' trust will be treated as a capital gain, if the distribution is paid "on account of the employee's death or other separation from the service of his employer.

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