Harold L. and Gladys M. Humberson - Page 18

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               By virtue of subparagraph (2)(A) of section 72(t), the 10-             
          percent additional tax does not apply to certain distributions.             
          Specifically, petitioners rely on clause (2)(A)(v), which                   
          provides that the 10-percent additional tax does not apply to               
          distributions "made to an employee after separation from service            
          after attainment of age 55".  (Emphasis added.)  However, this              
          clause does not apply in the present case because the Transfer              
          Refund was paid to petitioner well before, and not after, he                
          separated from service.16                                                   
               Even though the result we reach here may seem harsh to                 
          petitioners, we may not ignore the plain language of the statute            
          and, in effect, rewrite it in order to achieve what might be                
          viewed by them as the more equitable result.  See Hildebrand v.             
          Commissioner, 683 F.2d 57, 58 (3d Cir. 1982), affg. T.C. Memo.              
          1980-532; Zadan v. Commissioner, T.C. Memo. 1993-85.  After all,            
          the power to legislate is exclusively the power of Congress and             
          not of this Court or any other.  See Iselin v. United States, 270           
          U.S. 245, 250 (1926).                                                       
               In view of the foregoing, we sustain respondent's                      
          determination that petitioners are liable for the 10-percent                

          16 We also observe that the Transfer Refund was paid to                     
          petitioner "on account of" his election to transfer from the                
          Retirement System to the Pension System and not "on account of"             
          his separation from the service.  See Hylton v. Commissioner,               
          T.C. Memo. 1995-27 (addressing the maxim "causa causae est causa            
          causati"); see also Adler v. Commissioner, T.C. Memo. 1995-148,             
          on appeal (4th Cir. 1995); Dorsey v. Commissioner, 1995-97; Brown           
          v. Commissioner, T.C. Memo. 1995-93.                                        

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