David Brian Nolan - Page 8




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               Petitioner’s son will receive a high school diploma from               
          Randolph-Macon Academy, not a bachelor’s or associate’s degree.             
          Therefore, Randolph-Macon Academy is a secondary school and is              
          not an eligible educational institution under section 529(e)(5).            
          Accordingly, the expenses petitioner paid Randolph-Macon Academy            
          are not qualified higher education expenses, and the IRA                    
          distributions are not excepted from the section 72(t) additional            
          tax under section 72(t)(2)(E).                                              
          Medical Expenses                                                            
               Section 72(t)(2)(B) provides an exception to application of            
          the section 72(t) additional tax for “Distributions made * * * to           
          the extent such distributions do not exceed the amount allowable            
          as a deduction under section 213 * * * for amounts paid during              
          the taxable year for medical care”.                                         
               Petitioner testified that during 2003 he paid medical                  
          expenses relating to his diabetes.  He did not present any                  
          evidence as to the amount of the medical expenses or their                  
          deductibility under section 213.  Therefore, petitioner failed to           
          meet his burden of proving that the section 72(t) additional tax            
          should not apply on account of the medical expense exception.               
          Conclusion                                                                  
               Petitioner has not argued, and the record is devoid of any             
          evidence that would indicate, that the distributions qualify for            
          any other exception to section 72(t)(1).  For the foregoing                 







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