Nader Ghazitehrani and Farzaneh Zamanizadeh - Page 5

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          Accordingly, we need not decide whether section 7491(a) applies             
          in this case.1                                                              
               Section 72(t)(1) imposes an additional tax on an early                 
          distribution from a qualified retirement plan equal to 10 percent           
          of the portion of the amount which is includable in gross income.           
          A qualified retirement plan includes a section 401(k) plan.  See            
          secs. 401(a), (k)(1), 4974(c)(1).  Petitioners do not dispute               
          that the unpaid balance of the loan from the section 401(k) plan            
          was an early distribution which was includable in gross income.             
               The 10-percent additional tax does not apply to certain                
          distributions, including distributions:  (1) To an employee age             
          59-1/2 or older; (2) on account of the employee’s disability; (3)           
          as part of a series of substantially equal periodic payments made           
          for life; (4) to an employee after separation from service after            
          attainment of age 55; (5) to an employee for medical care; or (6)           
          to an alternate payee pursuant to a qualified domestic relations            
          order.  Sec. 72(t)(2).                                                      
               Petitioners do not argue that they satisfy any of the                  
          enumerated exceptions under section 72(t)(2).  Instead,                     
          petitioners contend that the additional tax should not apply                

               1 Pursuant to sec. 7491(c), the Commissioner bears the                 
          burden of production with respect to any penalty, addition to               
          tax, or additional amount.  Even if the $2,338 additional tax               
          under sec. 72(t) is an “additional amount” for which respondent             
          bears the burden of production, respondent has met such burden by           
          showing that petitioner received the distribution when he was 53            
          years old.  See Milner v. Commissioner, T.C. Memo. 2004-111 n.2.            





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