Rhett B. and Sandra L. Ross - Page 12

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          Transfer Refund.  In this regard petitioners point to the fact              
          that they reported liability for additional tax under section               
          72(t) on their 1989 income tax return in the amount of $8,445               
          based on a reported taxable distribution in the amount of $84,447           
          and on their 1991 income tax return in the amount of $6,909 based           
          on a reported taxable distribution in the amount of $69,089.7               
               There are at least two fundamental weaknesses to                       
          petitioners' contention.  First, petitioners overlook the fact              
          that they have commenced a suit for refund against the United               
          States in the U.S. District Court for the District of Maryland.             
          Such action involves petitioners' claim for refund relating to              
          the payment of additional tax under section 72(t) in 1991.  In              
          other words, petitioners are currently seeking the recovery of              
          taxes allegedly overpaid relating to the reporting of the IRA               
          distribution in December 1991 and the additional tax under                  
          section 72(t) paid in respect thereof.                                      
               Second, petitioners overlook the fact that only 1 taxable              
          year is pending before this Court and that such year is 1989.               
          Even though petitioners' litigation expenses relating to their              
          refund action would be minimized, if not obviated, by our                   
          resolving the issues pertaining to 1991, we simply have no                  


          7 The sum of the two reported distributions, i.e., $84,447 + $69,089 or     
          $153,536, is slightly less than the taxable portion of petitioner's Transfer
          Refund, i.e., $154,447.  Accordingly, the sum of the additional taxes under 
          sec. 72(t) reported by petitioners on their 1989 and 1991 income tax returns
          ($15,354) is slightly less than the additional tax on the taxable portion of
          petitioner's Transfer Refund ($15,448).  This difference is unimportant to our
          decision.                                                                   




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