Creston Swaim - Page 4

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          demonstrate that the payment in question falls into a specific              
          statutory exclusion.  Commissioner v. Glenshaw Glass Co., 348               
          U.S. 426, 429-431 (1955).                                                   
               Petitioner concedes that he received the payments in                   
          question in the amounts determined by respondent.2  Petitioner              
          does not contend that any of the payments fall into a specific              
          statutory exclusion.  Consequently, we sustain respondent's                 
          determination that the amounts in question are includable in                
          petitioner's gross income.                                                  
          2.  Section 72(t) Additional Tax                                            
               Section 72(t)(1) imposes an additional tax equal to 10                 
          percent of the portion of an early distribution from a "qualified           
          retirement plan" that is includable in the taxpayer's gross                 
          income.  An individual retirement account (IRA) is included in              
          the definition of a "qualified retirement plan".  Secs. 72(t)(1),           
          4974(c)(4).                                                                 
               Section 72(t)(2) provides for certain exceptions to the                
          general rule contained in paragraph (1).  One important exception           
          provides that the 10-percent additional tax does not apply if the           
          distribution was made on or after the date that the taxpayer                
          attained age 59 1/2.  Sec. 72(t)(2)(A)(i).                                  


               2In the stipulation of facts, petitioner concedes that he              
          received the payments in question, but some of the amounts                  
          stipulated are slightly greater (by less than one dollar) than              
          the amounts determined in the notice of deficiency.  To the                 
          extent the amounts in the stipulation of facts exceed the amounts           
          in the notice of deficiency, we deem respondent to have conceded            
          the excess.                                                                 


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