Dennis J. Lawless - Page 6

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               The first issue is whether petitioner is liable for the                
          section 72(t) 10-percent additional tax on the 1997 Denso Plan              
               As a general rule, if a taxpayer receives any amount from a            
          section 401(k) retirement plan, the taxpayer is liable, in the              
          year of receipt, for a 10-percent additional tax on the portion             
          of the amount which is includable in gross income.  Secs. 72(t),            
          401(a), 4974(c).  This general rule is subject to a number of               
          exceptions.  See sec. 72(t)(2).                                             
               In the notice of deficiency, respondent determined that                
          petitioner’s taxable income included no amount from the Denso               
          Plan distribution.  Respondent has not sought any increased                 
          deficiency resulting from the inclusion of the Denso Plan                   
          distribution in petitioner’s gross income and has not otherwise             
          alluded to this issue at trial or on brief.  We deem respondent             
          to have conceded that the Denso Plan distribution is not                    
          includable in petitioner’s gross income.  Accordingly, petitioner           
          is not subject to the 10-percent additional tax on the Denso Plan           
               The second issue is whether respondent properly determined a           
          deficiency based upon an erroneous refund to petitioner.                    
               The jurisdiction of this Court is limited as specifically              
          authorized by statute.  See Belloff v. Commissioner, 996 F.2d               

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