Richard D. Smart - Page 4

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               The other distribution, $116,251.20, comprised the employer            
          and pretax employee contributions to petitioner’s 401(k); income            
          tax was withheld from this distribution, and he used a portion of           
          the distribution to pay off personal debts.  He used the                    
          remainder, approximately $30,000, to assist in the acquisition of           
          his first home.                                                             
               Petitioner timely filed a Form 1040, U.S. Individual Income            
          Tax Return, for 2002.  On his return, petitioner properly                   
          reported the $116,251.20 distribution as income but did not                 
          report the 10-percent additional tax for early distributions                
          under section 72(t).  In the notice of deficiency, respondent               
          determined that petitioner was liable for the 10-percent                    
          additional tax on the early $116,251.20 distribution (hereinafter           
          the distribution) from his 401(k) plan pursuant to section 72(t).           
                                     Discussion3                                      
               Generally, a distribution from a qualified plan is                     


               3  We decide the issue in this case without regard to the              
          burden of proof because the facts are not in dispute, and the               
          issue is legal in nature.  See sec. 7491(a); Rule 142(a); Higbee            
          v. Commissioner, 116 T.C. 438 (2001).  In addition, petitioner              
          does not argue that the burden of proof in this case should be              
          shifted to respondent under sec. 7491.  Furthermore, as we do not           
          decide the issue in this case on the burden of proof, regardless            
          of whether the $11,625.10 additional tax under sec. 72(t) would             
          be considered an “additional amount” under sec. 7491(c), and                
          regardless of whether the burden of production with respect to              
          this additional tax would be on respondent, respondent in this              
          case has met any such burden of production by showing that                  
          petitioner received the distribution when he was 54 years of age.           
          See H. Conf. Rept. 105-599, at 241 (1998), 1998-3 C.B. 747, 995.            





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