Daniel R. and Margaret J. Kallmyer - Page 9




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          the clear intent of Congress to prevent voluntary withdrawals, we           
          decided that the penalty was inapplicable.  Id. at 291.                     
               Petitioners’ reliance on Larotonda v. Commissioner, supra,             
          is misplaced.  Here, respondent did not levy on the retirement              
          accounts.  Petitioners made voluntary withdrawals from the                  
          accounts and then satisfied their delinquent tax liability by               
          paying $15,000 out of those withdrawals.  The excess withdrawals            
          were used by petitioner for other purposes.4  We decline to                 
          extend the holding of Larotonda to circumstances such as here,              
          where petitioners willingly made withdrawals from the retirement            
          accounts and had actual possession of those distributions prior             
          to using a portion of the distributions for the payment of the              
          preexisting tax liability.  See Czepiel v. Commissioner, T.C.               
          Memo. 1999-289; cf. Murillo v. Commissioner, T.C. Memo 1998-13              
          (distributions from retirement accounts forfeited held not                  
          subject to the section 72(t) additional tax), affd. without                 
          published opinion on other issues 166 F.3d 1201 (2d Cir. 1998).             
               Reviewed and adopted as the report of the Small Tax Case               
          Division.                                                                   
                                                  Decision will be entered            
                                             for respondent.                          



          4  Petitioner claims that $19,000 of the distributions was used             
          to pay the tax incurred during the year from the distributions.             
          The facts belie this assertion.  Petitioners did not even report            
          the distributions.                                                          





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