Jeffrey Lee Golian - Page 5




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          the entire distribution as the taxable amount, which he included            
          in gross income.                                                            
                                     Discussion                                       
               In general, the Commissioner’s determinations in a notice of           
          deficiency are presumed correct, and the taxpayer bears the                 
          burden of showing that those determinations are erroneous.  Rule            
          142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);              
          Welch v. Helvering, 290 U.S. 111, 115 (1933).  Pursuant to                  
          section 7491(a), the burden of proof as to factual matters may              
          shift to the Commissioner under certain circumstances.  We decide           
          this case without regard to the burden of proof.  Accordingly, we           
          need not decide whether section 7491(a) applies in this case.4              
               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 that is includable in gross income.            
          A qualified retirement plan includes a section 401(k) plan and an           
          IRA.  See secs. 401(a), (k)(1), 408(a), 4974(c)(1).  The 10-                
          percent additional tax is intended to discourage premature                  
          distributions from retirement plans.  Dwyer v. Commissioner, 106            

               4  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 10-percent additional tax           
          under sec. 72(t) is an “additional amount” for which respondent             
          bears the burden of production, respondent has met such burden by           
          demonstrating that petitioner was 46 years old in 2003 when he              
          received the distribution in issue.  See Milner v. Commissioner,            
          T.C. Memo. 2004-111 n. 2.                                                   






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