John and Michele McGovern - Page 5

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          $12,880.04 distribution from their TSP to Villanova University,             
          arguing that this transaction was tantamount to first rolling               
          over the $12,880.04 into an IRA and then distributing that amount           
          to Villanova University.                                                    
               Petitioners filed the 1999 tax return on April 15, 2000;               
          accordingly section 7491(a) is applicable in the instant case.              
          Neither party takes a position as to whether the burden of proof            
          has shifted to respondent under section 7491(a).  We conclude               
          that, based upon the record, respondent bears the burden of                 
          proof.  Nevertheless, we further conclude that resolution of the            
          issue whether the 10-percent additional tax applies to the                  
          $12,880.04 distribution from the TSP does not depend upon which             
          party has the burden of proof.                                              
               A 10-percent additional tax is imposed upon early                      
          distributions from a “qualified retirement plan”.  Sec.                     
          72(t)(1).2  In the present case, petitioner’s TSP is a qualified            
          retirement plan, and the $12,880.04 distribution from his TSP was           

               2  Sec. 72(t)(1) provides:                                             
                    SEC. 72(t).  10-Percent Additional Tax on Early                   
               Distributions from Qualified Retirement Plans.--                       
                         (1) Imposition of additional tax.–-If any                    
                    taxpayer receives any amount from a qualified                     
                    retirement plan (as defined in section 4974(c)),                  
                    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.                                       

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