Keith Lamar Jones - Page 4

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               Petitioner timely filed a Form 1040, U.S. Individual Income            
          Tax Return, for 2001.  Chase Manhattan Bank issued to petitioner            
          a Form 1099-R, Distributions From Pensions, Annuities, Retirement           
          or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., showing           
          a gross and taxable distribution from his 401(k) plan for 2001 of           
          $30,368.86.  Petitioner included the $30,368.86 distribution as             
          income on his return but did not report the additional tax for an           
          early distribution under section 72(t).  In the notice of                   
          deficiency, respondent determined that petitioner was liable for            
          a 10-percent additional tax on the early 401(k) plan distribution           
          pursuant to section 72(t).                                                  
               Taxpayers generally bear the burden of proving the                     
          Commissioner’s determinations are incorrect.  See Rule 142(a);              
          Welch v. Helvering, 290 U.S. 111, 115 (1933).  The burden as to a           
          factual issue relevant to the liability for tax may shift to the            
          Commissioner if the taxpayer introduces credible evidence and               
          satisfies the requirement to substantiate items.  Sec.                      
          7491(a)(2)(A).  The facts are not in dispute in this case, and              
          section 7491(a) has no bearing in this case.                                
              Section 72(t)(1) imposes an additional tax on an early                  
         distribution from qualified retirement plans equal to 10 percent             

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