Bryan K. Gauthier - Page 4




                                        - 3 -                                         
          obtained an extension of time within which to timely file his               
          1998 tax return.                                                            
                                     Discussion                                       
          Distributions From Retirement Plans                                         
               Section 72(t)(1) provides:                                             
               If any taxpayer receives any amount from a qualified                   
               retirement plan (as defined in section 4974(c)), the                   
               taxpayer’s tax under this chapter for the taxable year in              
               which such amount is received shall be increased by an                 
               amount equal to 10 percent of the portion of such amount               
               which is includible in gross income.                                   
               A “qualified retirement plan” is defined as, inter alia, “a            
          plan described in section 401(a) which includes a trust exempt              
          from tax under section 501(a)”.  Sec. 4974(c)(1).  Petitioner               
          contends that the ESOP was not a qualified retirement plan.  The            
          record is devoid of any factual bases for this assertion.                   
          Furthermore, respondent introduced into evidence a letter from              
          respondent that determined that the ESOP was a qualified                    
          retirement plan.  See sec. 409.  We find that the ESOP was a                
          qualified retirement plan.3                                                 
               With regard to the distribution from the section 401(k)                
          plan, petitioner does not dispute that it was a qualified                   


          3  Sec. 7491(a) provides that the burden of proof as to a                   
          factual issue shifts to respondent if petitioner introduces                 
          credible evidence as to that issue.  Assuming, but not deciding             
          that this issue is factual, petitioner did not introduce credible           
          evidence to support a contrary position, and sec. 7491(a) is                
          inapplicable.                                                               






Page:  Previous  1  2  3  4  5  6  7  Next

Last modified: May 25, 2011