Graceann Berry - Page 3

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               During February 1999, petitioner suffered illness from                 
          exposure to chemicals used to fumigate her leased living                    
          quarters.  Petitioner reached agreement with her landlord to be             
          released from her lease obligation in exchange for her releasing            
          her landlord for any responsibility for her illness.  On March 1,           
          2002, respondent timely issued a notice of deficiency to                    
          petitioner.  In the notice of deficiency respondent determined              
          that petitioner was liable for the 10-percent additional tax with           
          respect to the $9,514 distribution.                                         
                                     OPINION                                          
               Section 72(t)2 imposes a 10-percent additional tax on early            
          distribution from qualified retirement plans.  There is no                  
          dispute about the distribution’s being “early” and otherwise                
          subject to the 10-percent additional tax.  The question we                  
          consider is whether petitioner qualified for the exception from             
          the 10-percent additional tax under section 72(t)(2)(B).  That              
          section provides for an exception from the 10-percent additional            
          tax for distributions made to employees “to the extent such                 
          distributions do not exceed the amount allowable as a deduction             
          under section 213 to the employee for amounts paid during the               
          taxable year for medical care (determined without regard to                 
          whether the employee itemizes deductions for such taxable year).”           
               Respondent did not question petitioner’s claim that                    

               2 All section references are to the Internal Revenue Code as           
          amended and in effect for the period under consideration.                   




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