Joe M. and Patricia M. Brown - Page 15

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          Petitioners' 1989 Income Tax Return                                         
               On their income tax return for 1989, petitioners disclosed             
          the receipt of the taxable portion of the Transfer Refund; i.e.,            
          $227,812.  Of this amount, petitioners reported that $77,812 was            
          taxable and that the balance, or $150,000, had been rolled over             
          tax-free into an IRA.                                                       
               Petitioners attached Form 5329 "Return for Additional Taxes            
          Attributable to Qualified Retirement Plans (Including IRAs)                 
          Annuities, and Modified Endowment Contracts" to their 1989                  
          return.  In Part II of this form, petitioners reported liability            
          in the amount of $7,781 for the additional tax under section                
          72(t); i.e., 10 percent of $77,812, the amount of the Transfer              
          Refund that petitioners had included in gross income.                       
          Respondent's Deficiency Determination For 1989                              
               In the notice of deficiency for 1989, respondent determined            
          that petitioner's Transfer Refund was not eligible for tax-free             
          rollover treatment under section 402(a)(5).  Respondent also                
          determined that, by virtue of sections 402(a)(1) and 72, the                
          taxable portion of the Transfer Refund (i.e., $227,812.11) was              
          includable in petitioners' gross income for 1989.  Accordingly,             
          because petitioners had previously reported that $77,812 of such            
          amount was taxable and had attempted to roll over only the                  
          balance (i.e., $150,000), respondent increased petitioners'                 








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