Joseph Jones - Page 8

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          to a distribution from an individual retirement plan, a                     
          distribution from a section 401(k) plan will not qualify for the            
          first home purchase exception.                                              
               TESPHE is a defined contribution pension plan qualified                
          under sections 401(a) and (k).  TESPHE is not an individual                 
          retirement plan as defined in section 7701(a)(37).  Therefore,              
          the $50,674 TESPHE distribution to petitioner is not subject to             
          the first home purchase exception in section 72(t)(2)(F).6                  
          Petitioner’s Basis in the Distribution                                      
               Petitioner alternatively contends that he had a basis in the           
          1999 distribution from his TESPHE account equal to the total                
          amount of his previously made loan repayments.  In this regard,             
          petitioner relies on the fact that he made these repayments with            
          after-tax dollars.                                                          
               Preretirement distributions from a qualified retirement plan           
          are treated as nonannuity distributions.  See sec. 72(e)(1).  If            
          the distribution is received before retirement, only amounts                
          allocable to the “investment in the contract” (i.e., basis) are             


               6  Petitioner also fails to qualify as a “first-time                   
          homebuyer” within the definition of sec. 72(t)(8)(D)(i)(I).                 
          Petitioner, as well as his then wife, had an ownership interest             
          in the Michigan residence in 1999.  Petitioner began construction           
          on his Georgia residence in 1999.  Thus, petitioner had an                  
          ownership interest in the Michigan residence within the 2-year              
          period ending on the date he acquired his Georgia residence.  See           
          sec. 72(t)(8)(D).  See also sec. 72(t)(8)(B), which limits the              
          amount of distributions treated as first-time homebuyer                     
          distributions to $10,000.                                                   





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