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See H. Rept. 105-148, at 288-289 (1997), 1997-4 C.B. (Vol. 1)
319, 610-611; see also Notice 97-60, sec. 4, 1997-2 C.B. 310,
317-318.
Both section 401(k) plans and individual retirement plans
are subject to the general requirements of section 72(t). See
secs. 72(t)(1), 401(a), (k)(1), 4974(c)(1), (4), (5). However,
classification as a section 401(k) plan is separate and distinct
from classification as an individual retirement plan. See secs.
401(k), 408(a) and (b). The distribution in this case was from a
section 401(k) account, which does not fall within the IRA
category. This conclusion is further supported by the statutory
definition of individual retirement plans, which includes plans
described in section 408 but not those described in section
401(k). See sec. 7701(a)(37). If the distribution had been
made from an IRA, it would have been reported on line 15b,
“Taxable amount” of “Total IRA distributions”, of petitioners’
Form 1040, not on line 16b where it was reported. Because the
distribution was not from an IRA, it would not qualify for the
exception for higher education expenses, even if it were used for
higher education expenses.
Petitioners stated in their petition that the distribution
was from a section 401(k) account, a fact which petitioners have
not denied. Petitioners did not respond to the first summary
judgment motion, and the sole argument presented in the response
to the second motion is that Rule 121 does not provide for
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