Henry Uscinski and Jacqueline Uscinski - Page 7

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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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