Roy Robert Botts - Page 4




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          disputes this representation and contends that the amount was               
          withheld to satisfy the early withdrawal penalty.  (This                    
          contention, if valid, would mean $2,148.80 ($7,656.80 less                  
          $5,508) would remain unexplained.  This point was not addressed             
          at trial).                                                                  
               On or about May 12, 1997, Union Bank issued petitioner a               
          check in the amount of $33,428.29.  The amount of the check                 
          reflected the 401(k) distribution of $55,404.63 less the                    
          $21,976.34 total withholdings made by Union Bank.  About May 16,            
          1997, petitioner negotiated the check at a branch of First Union            
          National Bank.                                                              
               Respondent’s position is that the $7,656.80 additional                 
          withholding from petitioner’s early 401(k) distribution was not             
          in satisfaction of the section 72(t) 10-percent additional tax.             
          Respondent states that the evidence proves that the $7,656.80               
          withholding made by Union Bank was a payoff in satisfaction of a            
          loan and that petitioner is liable for the section 72(t) 10-                
          percent additional tax.                                                     
               Early distributions from a qualified retirement plan are               
          subject to a 10-percent additional tax, with exceptions not                 
          applicable in this case.  Sec. 72(t).  Petitioner does not                  
          contest that the section 72(t) 10-percent additional tax applies            
          to the distribution of $55,404.63 made by Union Bank to him from            
          his 401(k) account.                                                         






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