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Rules 180, 181, and 183.1 The Court agrees with and adopts the
Opinion of the Special Trial Judge, which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: Respondent determined a
deficiency in petitioners' Federal excise tax2 under section
4980A for the taxable year 1990 in the amount of $45,991.3 In an
amended petition, petitioners claimed an overpayment of income
tax by electing to use the 10-year forward averaging provisions
under section 402(e)(1).
After a concession by respondent,4 the primary issue for
decision is whether petitioner Allan R. Powell is liable for the
15-percent excise tax under section 4980A for the taxable year
1990. The resolution of this issue turns on whether a Transfer
Refund distribution was paid from a qualified employer plan
pursuant to section 4980A(e)(2). If we decide that the Transfer
1 Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
2 In the notice of deficiency, respondent characterized the
deficiency as a deficiency in income tax rather than excise tax.
It would appear that respondent erred in this regard.
3 Sec. 4980A imposes a 15-percent excise tax on excess
distributions from qualified retirement plans. This tax is
included within ch. 43 of the I.R.C. and is subject to the
deficiency procedures set forth in subch. B of ch. 63 of the
I.R.C. See sec. 6211(a).
4 Respondent concedes that petitioner Joan K. Powell is not
liable for the deficiency in issue herein.
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