- 3 -
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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