Richard L. and Stephanie S. Barbee - Page 5

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          the section 72(t) additional tax was not applicable in their                
          case.  Respondent, while agreeing that the proceeds withdrawn               
          from the Employees Retirement System of Texas were used                     
          exclusively for higher education expenses under section 72(t)(7),           
          contends that the distribution petitioners received was not a               
          withdrawal from a qualified plan to which the section 72(t)(2)(E)           
          exception is applicable.                                                    
               Section 72(t)(1) imposes an additional tax on distributions            
          from a “qualified retirement plan” equal to 10-percent of the               
          portion of such amount that is includable in gross income unless            
          the distribution comes within one of several statutory                      
          exceptions.  For purposes of the 10-percent additional tax, a               
          qualified retirement plan includes both a section 401(k) plan and           
          an individual retirement account or individual retirement                   
          annuity.  See secs. 72(t)(1), 401(a), (k)(1), 4974(c)(1), (4),              
          and (5).  The 10-percent additional tax imposed on early                    
          distributions from qualified retirement plans does not apply to             
          distributions from an individual retirement plan used for higher            
          education expenses of the taxpayer for the taxable year.  Sec.              
          72(t)(2)(E).  The term “individual retirement plan” is defined as           
          an individual retirement account or individual retirement annuity           
          (commonly referred to as IRAs).  Sec. 7701(a)(37).  Retirement              
          plans qualified under section 401(a) and (k), however, are not              







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