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made on or after the date on which the taxpayer attained age
59 1/2. Sec. 72(t)(2)(A)(i). Petitioner did not attain age
59 1/2 in 2002. Petitioner has not alleged and the evidence does
not suggest that any other exception under section 72(t)(2)
applies.6 Respondent is sustained on this issue.
Alleged Credit for Offset of Petitioner’s Tax Payments
Petitioner claims credit against his 2002 tax liability for
the $1,738 that the Treasury Department reported paying over to
DOE in 2002.7 Petitioner contends that this amount was paid over
to DOE improperly because he had no outstanding debts with DOE.
The Treasury Department’s payment to DOE was pursuant to
section 6402(d), which generally requires the Secretary, upon
notice from any Federal agency that a named person owes a “past-
6 On brief, petitioner argues for the first time that the
10-percent additional tax on the annuity distributions has
already been paid by the “Retirement Board of the Teacher
Association” upon a prior rollover of the annuity funds and that
respondent is now attempting “to take the same amount again.”
We decline to consider this issue raised for the first time on
brief, for to do so would result in surprise and prejudice to
respondent. See Sundstrand Corp. v. Commissioner, 96 T.C. 226,
346-347 (1991); Seligman v. Commissioner, 84 T.C. 191, 198
(1985), affd. 796 F.2d 116 (5th Cir. 1986). In any event,
petitioner’s late-raised contention is contradicted by
petitioner’s own trial testimony that the “retirement board * * *
didn’t take out any” amount upon the prior rollover.
7 On his Form 1040A, petitioner appears to have treated this
amount (which he listed as “$1,725 (est.)”) as an overpayment of
his 2001 taxes to be credited against his 2002 estimated tax.
Cf. sec. 301.6402-3(a)(5), Proced. & Admin. Regs. (explaining
procedure whereby, in lieu of receiving a refund for a particular
year, a taxpayer can instruct the IRS to credit his overpayment
against the estimated tax for the immediately succeeding year).
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