Daniel R. and Margaret J. Kallmyer - Page 8




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          relied on that promise, they suffered no detriment that is                  
          legally cognizable.  Petitioners did not surrender any rights.              
          Petitioners paid the tax that was lawfully owing and did not                
          change any position to their detriment.                                     
          3.  Liability for Section 72(t) Additional Tax                              
               Section 72(t) provides:                                                
                    (1) Imposition of additional tax.–- If any taxpayer               
               receives any amount from a qualified retirement plan * * *             
               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.                                   
          Section 72(t)(2) provides for exceptions to the additional tax,             
          which petitioners concede are not applicable here.                          
               Petitioners argue, however, that their case is analogous to            
          Larotonda v. Commissioner, 89 T.C. 287 (1987), in which this                
          Court held that where the Commissioner levied on the taxpayer’s             
          qualified retirement plan, the resulting distribution was not               
          subject to the 10-percent premature distribution penalty imposed            
          by then section 72(m)(5).  We reasoned that the penalty provision           
          was meant to discourage voluntary early withdrawals from                    
          qualified retirement plans and to discourage income averaging               
          which could be achieved by deferring the timing of income until             
          years with lower annual income amounts.  Id. at 292.  In deciding           
          Larotonda we noted that “admittedly, this is a close question”;             
          however, in light of the involuntary nature of the withdrawal and           







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