Edward A. Bougas III - Page 4

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          check the $150,000 ordered in the divorce judgment.  On April 1,            
          1998, petitioner paid Ms. Bougas’s $10,000 attorney’s fee by                
          check made payable to Frank Louis.  By checks dated April 19 and            
          20, 1998, petitioner paid the various credit card companies for             
          the debts incurred by Ms. Bougas.  All the checks mentioned above           
          were drawn against petitioner’s personal checking account at RNB.           
          No funds were transferred from petitioner’s IRA directly to Ms.             
          Bougas or any other party to satisfy the terms of the divorce               
          judgment.                                                                   
               On his 1998 Federal income tax return, petitioner reported             
          the $250,000 distribution from his IRA as income.  However,                 
          petitioner did not report an additional tax of 10 percent of the            
          total distribution for the early withdrawal from the IRA.                   
          Respondent determined in the notice of deficiency that petitioner           
          is liable for the additional tax on an early distribution from a            
          qualified retirement plan.  Although admitting that a QDRO was              
          never issued, petitioner asserts he is not liable for the                   
          additional tax on the early distribution because the divorce                
          judgment and his actions meet the criteria of a QDRO within the             
          spirit of the law.                                                          
                                       OPINION                                        
               We decide the deficiency issue in this case on the basis of            
          the preponderance of the evidence in the record without regard to           
          the burden of proof.  Accordingly, we need not decide whether               






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