Joe M. and Patricia M. Brown - Page 24

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               In view of the foregoing, we hold that petitioner was                  
          disabled, within the meaning of section 72(m)(7), immediately               
          before receiving the Transfer Refund.  Accordingly, the Transfer            
          Refund qualifies as a partial distribution and is eligible for              
          tax-free rollover treatment under section 402(a)(5)(D).                     
          Petitioners are therefore not required to include in their gross            
          income for 1989 the $150,000 that was not previously included               
          therein.                                                                    
          II. The IRA Distribution Issue                                              
               On or about August 8, 1990, petitioner withdrew $157,174               
          from his IRA with First National.  Petitioners reported $150,000            
          of this distribution in their gross income for 1990.                        
               Respondent contends that for 1990, petitioners failed to               
          include in their gross income $7,174 of petitioner's IRA                    
          distribution from First National.  We do not understand                     
          petitioners to argue that the amount of the IRA distribution in             
          excess of $150,000; i.e., $7,174, is not includable in their                
          gross income for 1990.  In any event, based on the record as a              
          whole, we are satisfied that the $7,174 represents taxable                  
          earnings from petitioner's IRA and that such amount is properly             
          includable in petitioners' gross income for 1990.  Sec.                     
          408(d)(1).                                                                  









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