Richard David Czepiel - Page 15




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               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          id., and that "To the contrary, the funds were withdrawn pursuant           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 various            





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