-8-
72(t)(2)(E) states specifically that distributions are excepted
from the additional tax to the extent that they do not exceed the
qualified higher education expenses “for the taxable year.”
Because the distributions from petitioner’s IRA occurred in 2001
and the disputed qualified higher education expenses were for
1999 and 2000, we conclude that the exception of section
72(t)(2)(E) does not apply to any portion of the disputed
distributions.
Petitioner asks the Court to construe the statute equitably
in her favor. We decline to do so. We must apply the law as
Congress enacted it and may not rewrite it. See Hildebrand v.
Commissioner, 683 F.2d 57, 59 (3d Cir. 1982), affg. T.C. Memo.
1980-532. We hesitate, however, to concur that the equities
favor petitioner. The transfer to her IRA more than doubled by
reason of her decision to defer it, and she would in a sense have
it both ways if she were now permitted to escape the 10-percent
additional tax as to the disputed distributions.
We sustain respondent’s determination modified by his
concessions. We have considered all arguments made by the
parties and have rejected those arguments not discussed herein as
meritless.
Decision will be entered
under Rule 155.
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