Magellean Askew, Jr. - Page 12

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          defined in section 402(c)(8)(B)) within 60 days of receipt of the           
          distributed property.  Sec. 403(b)(8).  Under section                       
          402(c)(4)(C), an eligible rollover distribution specifically                
          excludes any hardship distribution.  Moreover, an early                     
          withdrawal from a section 403(b) annuity contract that does not             
          meet the aforementioned distribution requirements is subject to             
          an early withdrawal penalty of 10 percent of the portion of such            
          amount that is includable in gross income.8  Sec. 72(t)(1).                 
                As relevant to this case, any amount that is received                 
          under an annuity contract on its complete surrender, which is not           
          received as an annuity and is not subject to any other income tax           
          law provision, shall be included in gross income to the extent it           
          exceeds the investment in the contract.  Sec. 72(e)(1)(A),                  
          (5)(A), (E)(ii).  The investment in the contract is defined                 
          generally as the aggregate amount of premiums or other                      
          consideration paid for the contract less amounts previously                 
          received under the contract, to the extent such latter amounts              
          were excludable from gross income.  Sec. 72(e)(6).                          
                Petitioner contends that the distributions at issue are               
          not includable in gross income because he rolled over the                   




               8  An annuity contract under sec. 403(b) is a “qualified               
          retirement plan” for purposes of sec. 72(t)(1).  See sec.                   
          4974(c)(3).                                                                 





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