Linda Louise Lodder-Beckert and Timothy Beckert - Page 7

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          exception to this rule.  Section 72(t)(2)(E), added to the Code             
          by the Taxpayer Relief Act of 1997, Pub. L. 105-34, sec. 203(a),            
          111 Stat. 809, provides:                                                    
                    (E)  Distributions from individual retirement                     
               plans for higher education expenses.--Distributions to                 
               an individual from an individual retirement plan to the                
               extent such distributions do not exceed the qualified                  
               higher education expenses (as defined in paragraph (7))                
               of the taxpayer for the taxable year.  * * *                           
          Petitioner has the burden of proving the applicability of section           
          72(t)(2)(E).  See Matthews v. Commissioner, 92 T.C. 351, 361-362            
          (1989), affd. 907 F.2d 1173 (D.C. Cir. 1990).                               
               Given respondent’s concessions, we concern ourselves only              
          with the question of whether the distributions not used for                 
          petitioner’s qualified higher education expenses for 2001 fall              
          within the exception of section 72(t)(2)(E).  According to                  
          petitioner, all of her distributions (inclusive of the disputed             
          distributions) are within the exception because her total                   
          distributions were less than her total qualified higher education           
          expenses.  Respondent argues that none of the disputed                      
          distributions fall within the exception.  As respondent sees it,            
          a literal reading of section 72(t)(2)(E) requires that the                  
          distributions and qualified higher education expenses be in the             
          same year.                                                                  
               We agree with respondent.  Because the statute is not                  
          unescapably ambiguous, we construe it according to its plain                
          meaning.  Allen v. Commissioner, 118 T.C. 1, 7 (2002).  Section             





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