Mark F. Beneventi - Page 5




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          Discussion4                                                                 
               Generally, a distribution from a qualified employees’ trust            
          (including a profit sharing plan) is taxable to the distributee             
          in the year of distribution under the provisions of section 72.             
          Sec. 402(a); see sec. 401(a).  Section 402(c) provides an                   
          exception to the general rule for qualified “rollovers” by the              
          employee to “an eligible retirement plan” within 60 days of                 
          receipt.5  Sec. 402(c)(1), (3), (5).                                        
               Section 72(t)(1) imposes an additional tax on distributions            
          from a qualified retirement plan equal to 10-percent of the                 
          portion of such amount that is includable in gross income.  For             
          purposes of the 10-percent tax, a qualified retirement plan                 
          includes a profit sharing plan described under section 401(a).              
          See sec. 4974(c)(1).                                                        
               Section 72(t)(2) exempts the following distributions from              
          the additional tax if the distributions are made: (1) To an                 
          employee age 59-1/2 or older; (2) to a beneficiary (or to the               
          estate of the employee) on or after the death of the employee;              
          (3) on account of the employee being disabled; (4) as part of a             

               4  We need not decide whether sec. 7491, concerning burden             
          of proof, applies to the present case because the facts are not             
          in dispute and the issue is one of law.  See Higbee v.                      
          Commissioner, 116 T.C. 438 (2001).                                          
               5  An “eligible retirement plan” is defined to include: (1)            
          An individual retirement account described in sec. 408(a); (2) an           
          individual retirement annuity described in sec. 408(b) (other               
          than an endowment contract); (3) a qualified trust; and (4) an              
          annuity plan described in sec. 403(a).  Sec. 402(c)(8)(B).                  




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