Thomas and Sarah G. Ackerman - Page 4

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               Petitioners have not explicitly claimed that they should be            
          entitled to a section 31 credit for amounts employer purportedly            
          withheld on Mr. Ackerman’s plan distribution but failed to                  
          report.  But even if we were to construe petitioners’ claims                
          broadly to encompass such an argument, it would be an argument              
          that this Court lacks jurisdiction to consider.  The Court’s                
          jurisdiction in this case is limited to redetermining                       
          petitioners’ deficiency, see sec. 6213(a), which the statute                
          requires to be determined “without regard to the credit under               
          section 31".  Sec. 6211(b)(1); see Redcay v. Commissioner, 12               
          T.C. 806, 809-810 (1949); Porter v. Commissioner, T.C. Memo.                
          1996-475; Joy v. Commissioner, T.C. Memo. 1991-543.                         
               Petitioners do not dispute that Mr. Ackerman received at               
          least a $211,916 plan distribution in 2001.2  Accordingly, we               
          sustain respondent’s determination.                                         
               Petitioners contend alternatively that if employer neglected           
          to withhold Federal income tax on the plan distribution, then               
          only employer is liable for the tax.  For the reasons discussed             
          above, petitioners remain obligated to report their items of                
          gross income, notwithstanding employer’s payment or nonpayment of           
          withholding taxes thereon.  See Goins v. Commissioner, supra.               

               2 In fact, the import of petitioners’ argument seems to be             
          that $211,916 was the net plan distribution, after withheld                 
          taxes, and that the gross plan distribution was considerably                
          higher.  Respondent has not asserted any increased deficiency to            
          reflect any such higher amount of a gross plan distribution.                

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