Henry Uscinski and Jacqueline Uscinski - Page 4

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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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