Linda Louise Lodder-Beckert and Timothy Beckert - Page 8

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          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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