Rhett B. and Sandra L. Ross - Page 13

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          jurisdiction over that year.  See Commissioner v. Gooch Milling &           
          Elevator Co., 320 U.S. 418 (1943).  Moreover, in deciding                   
          petitioners' liability for additional tax under section 72(t) for           
          1989, we fail to appreciate the relevance of petitioners'                   
          original reporting position for 1991.  Cf. sec. 6214(b).  Apart             
          from the fact that the District Court might rule in petitioners'            
          favor in their refund action, we are aware of the annual                    
          accounting principle, which holds that taxable income is                    
          determined on an annual, rather than on a transactional, basis.             
          Burnet v. Sanford & Brooks Co., 282 U.S. 359, 365-366 (1931).  We           
          have therefore approached the issue of petitioners' liability for           
          additional tax under section 72(t) for 1989 with regard only for            
          the facts and law pertaining to that year.                                  
               Alternatively, petitioners contend that even if petitioner             
          Rhett B. Ross is liable for the additional tax under section                
          72(t), petitioner Sandra L. Ross is not so liable.  In this                 
          regard, petitioners contend that the joint and several liability            
          provision of section 6013(d)(3) applies only to income taxes, and           
          that the additional tax under section 72(t) is a penalty and not            
          a tax.  We think that petitioners' contention is without merit              
          for the following reasons.                                                  
               First, section 72(t) denominates the exaction that it                  
          imposes as a "tax" and not as a "penalty".  Other sections of the           
          Internal Revenue Code denominate the exactions that they impose             
          as "penalties" or "additions to tax".  See, e.g., section 6651(a)           




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