- 15 - We turn now to petitioner's reliance on Larotonda v. Com- missioner, supra, and Murillo v. Commissioner, supra. We find those cases to be distinguishable from the present case and petitioner's reliance on them to be misplaced. In Larotonda, the Commissioner of Internal Revenue (Com- missioner) assessed a tax deficiency against the taxpayer and thereafter levied upon his retirement plan, which was a so-called KEOGH plan. See Larotonda v. Commissioner, supra at 289. The Commissioner argued that the taxpayer's gross income included the levied funds and that the early withdrawal tax imposed by former section 72(m)(5)(B) applied to those funds. See id. at 290. We held that although the levied funds were includible in the taxpayer's gross income, the early withdrawal tax did not apply with respect to those funds. See id. at 291, 292. We examined the legislative history behind former section 72(m)(5)(B) and concluded that "Congress intended to prevent the voluntary, tax- motivated withdrawal of funds by taxpayers prior to retirement age." Id. at 292. We found on the record in Larotonda that no such voluntary, tax-motivated withdrawal of funds occurred, see id., and that "To the contrary, the funds were withdrawn pursuant to respondent's levy, an involuntary act, without any active participation", id., by the taxpayer. In Murillo v. Commissioner, supra, the taxpayer entered into a plea agreement as a result of having been indicted for variousPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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