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not meet any of the exceptions enumerated within section 72(t),
other than his contention that the distribution was used to pay
for education expenses.
On August 27, 2004, the Court issued an order denying
respondent’s first motion for summary judgment. First, there was
a discrepancy between the deficiency determination and
petitioners’ return. If the deficiency had been based on a 10-
percent additional tax on the $161,447 distribution, the
deficiency should have been $16,144.70. Respondent, however,
determined a $16,340 deficiency. In addition, the notice of
deficiency contained the determination of an addition to tax
under section 6651(a)(1) for failure to timely file their 1999
tax return. However, the notice of deficiency and the first
motion for summary judgment alleged different due dates for the
1999 return. Accordingly, we held that respondent failed to show
that there was no issue of a material fact.
On March 10, 2005, respondent filed a second motion for
summary judgment, which is now before the Court. For purposes
of that motion, respondent concedes that the amount of the
deficiency should be $16,144.70 and that there should be no
addition to tax for failure to file. In the motion, respondent
provided several reasons as to why the distribution could not
have been for higher education expenses. On April 15, 2005, Mr.
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