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Discussion
The first issue is whether petitioner is liable for the
section 72(t) 10-percent additional tax on the 1997 Denso Plan
distribution.
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
distribution.
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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Last modified: May 25, 2011