James Dirks - Page 9

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               from deadlines fixed by legislatures * * *  [Prussner                  
               v. United States, 896 F.2d at 222-223.]                                
               We conclude that we are not at liberty in this case to                 
          ignore the 60-day deadline that Congress has prescribed clearly             
          and unequivocally in section 408(d)(3)(A)(i).  Any modification             
          to that deadline is a legislative and not a judicial function.              
          See J.E. Riley Inv. Co. v. Commissioner, 311 U.S. 55, 59 (1940);            
          Xi v. United States, 298 F.3d 832, 839 (9th Cir. 2002); Prussner            
          v. United States, supra at 222-223; Kern v. Granquist, 291 F.2d             
          29, 33 (9th Cir. 1961).  In fact, petitioner notes correctly that           
          Congress has recently amended section 408 to authorize the                  
          Secretary to waive this 60-day period in certain cases.  See sec.           
          408(d)(3)(I), as added by the Economic Growth and Tax Relief                
          Reconciliation Act of 2001, Pub. L. 107-16, sec. 644(a),                    
          115 Stat. 123.  Given that this amendment applies only to                   
          distributions after December 31, 2001, id.; see also Anderson v.            
          Commissioner, T.C. Memo. 2002-171, it does not apply here.  We              
          sustain respondent’s determination as to the deficiency.5                   


               5 In addition to tax on petitioner’s receipt of the                    
          $118,000, respondent determined as part of this deficiency that             
          petitioner was liable for the 10-percent additional tax under               
          sec. 72(t).  Petitioner does not in his brief address this                  
          determination, and we consider it conceded.  Rybak v.                       
          Commissioner, 91 T.C. 524, 566 (1988); Money v. Commissioner,               
          89 T.C. 46, 48 (1987).  We note, however, that the additional tax           
          generally applies to all distributions from an IRA, see sec.                
          72(t)(1), and that the record does not establish that any of the            
          exceptions to this general rule found in sec. 72(t)(2) are                  
          applicable.                                                                 





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