Bryan K. Gauthier - Page 3




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               Respondent determined a deficiency in petitioner’s 1998                
          Federal income tax and an addition to tax under section                     
          6651(a)(1) of $3,433 and $321, respectively.  After concessions             
          by the parties,2 the issues are (1) whether petitioner is liable            
          for the additional tax under section 72(t) and (2) whether                  
          petitioner is liable for the addition to tax under section                  
          6651(a)(1).  Petitioner resided in New Orleans, Louisiana, when             
          the petition in this case was filed.                                        
               The facts may be summarized as follows.   During 1998,                 
          petitioner received a distribution of $4,388.25 from a section              
          401(k) retirement plan and $2,470.32 from an employee stock                 
          option plan (ESOP).  Regions Bank Delchamps, Inc. was the trustee           
          for both plans.  Petitioner included both distributions in gross            
          income on his 1998 Federal income tax return, but he did not pay            
          any additional tax under section 72(t).  During 1998, petitioner            
          had not attained the age of 59-1/2.  Petitioner did not claim any           
          deduction for a dependency exemption on his 1998 return.                    
               Respondent received petitioner’s 1998 Federal income tax               
          return on July 19, 1999.  The return was mailed during that                 
          month, the exact date, however, is unclear.  Petitioner had not             

          2  In the notice of deficiency, respondent determined that                  
          petitioner had additional income from cancellation of a debt                
          ($7,283) and self-employment income ($6,093).  Respondent has               
          conceded both issues.  Respondent also disallowed itemized                  
          deductions of $259.  Neither in his petition nor at trial has               
          petitioner raised this issue, and it is deemed conceded.  See               
          Levin v. Commissioner, 87 T.C. 698, 722-723 (1986), affd. 832               
          F.2d 403 (7th Cir. 1987).                                                   




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