Richard David Czepiel - Page 9




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          the $8,000 that he withdrew from IRA 2 to Ms. Czepiel's attorney.           
          Consequently, on July 31, 1995, the Family Court ordered pe-                
          titioner's release from jail.                                               
               BayBank charged Mr. Czepiel a fee (premature withdrawal fee)           
          in the amount of $362 for his having made premature distributions           
          from his IRA's.  BayBank charged that fee against the balances in           
          those IRA's.                                                                
               The Internal Revenue Service did not receive petitioner's              
          tax return for 1995 until March 17, 1997.  In that return,                  
          petitioner included in his gross income $46,902 of wages but did            
          not include therein any portion of the amounts totaling $30,662             
          that were distributed from his IRA's during that year (IRA                  
          distributions).                                                             
               In the notice of deficiency (notice) issued to petitioner              
          for 1995, respondent determined, inter alia, that petitioner                
          failed to include in his gross income $30,7622 which was dis-               
          tributed from his IRA's during that year and that he is liable              



               2Respondent determined in the notice, and the parties stipu-           
          lated and contend on brief, that petitioner's IRA distributions             
          during 1995 totaled $30,762.  We disagree.  On the record before            
          us, we have found that petitioner's IRA distributions consisted             
          of the $22,300 which he withdrew from IRA 1, the $8,000 which he            
          withdrew from IRA 2, and the $362 which was withdrawn from his              
          IRA's to pay the premature withdrawal fee which BayBank charged             
          Mr. Czepiel and that those distributions totaled $30,662.  See              
          Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181, 195 (1989).             





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