- 4 - 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.Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 10, 2007