Joe M. and Patricia M. Brown - Page 25

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               In view of our conclusion, supra, that petitioner's Transfer           
          Refund qualifies for tax-free rollover treatment in 1989 under              
          section 402(a)(5)(D), we understand petitioners to abandon what             
          must be viewed as their alternative contentions concerning the              
          alleged excludibility of $150,000 of petitioner's IRA                       
          distribution from gross income for 1990.  In any event, such                
          amount is properly includable in petitioners' gross income for              
          that year.  Sec. 408(d)(1).                                                 
          III. Section 72(t) Additional Tax Issue                                     
               We turn next to respondent's determination that petitioners            
          are liable for the additional tax under section 72(t) for 1989              
          and 1990.                                                                   
               Section 72(t) provides for a 10-percent additional tax on              
          early distributions from qualified retirement plans.  Paragraph             
          (1), which imposes the tax, provides in relevant part as follows:           
                    (1) Imposition of additional tax.--If any taxpayer                
               receives any amount from a qualified retirement plan                   
               (as defined in section 4974(c)), the taxpayer's tax                    
               under this chapter for the taxable year in which such                  
               amount is received shall be increased by an amount                     
               equal to 10 percent of the portion of such amount which                
               is includible in gross income.                                         
               Pursuant to section 4974(c), the term "qualified retirement            
          plan" includes plans described in section 401(a) and individual             
          retirement accounts described in section 408(a).  The Retirement            
          System from which petitioner received his Transfer Refund in 1989           








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