- 6 -
the Internal Revenue Code.” Petitioner, therefore, was not the
beneficiary of an individual retirement plan under section
7701(a)(37), which defines an individual retirement plan as an
individual retirement account under section 408(a) or an
individual retirement annuity under section 408(b). In short,
petitioners’ claim that the withdrawal at issue is excluded from
the 10-percent additional tax is incorrect. The section
72(t)(2)(E) exclusion from the additional tax does not apply to
section 401(a) withdrawals.
Petitioners argue that they were led to believe by employees
and agents of the Internal Revenue Service that the withdrawals
in question were not subject to the 10-percent additional tax
because the proceeds were used for higher educational benefits.
Such advice or information was erroneous as relates to the facts
of this case. The law is well settled that the Commissioner is
not estopped or bound by erroneous representations of agents or
employees. Estate of Emerson v. Commissioner, 67 T.C. 612, 617-
618 (1977); Auto. Club of Michigan v. Commissioner, 353 U.S. 180
(1957). Petitioners also argue that they had other individual
retirement accounts from which they could have made withdrawals
to use for Mr. Barbee’s higher educational expenses. Petitioners
cite no authority to support that argument, nor does this Court
have authority to attribute the withdrawal in that manner. The
short answer to that argument is that petitioners are bound by
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011