- 15 - however, the taxpayer has a right to access the funds, and does so in an effort to alleviate his tax liability, or does so in a manner (such as in Arnold v. Commissioner, supra) that modifies the series of substantially equal payments under section 72(t)(4)(A) for his personal gain, then that voluntary action should trigger the recapture penalty under section 74(t)(4)(A). Based on the foregoing, we reject petitioner’s argument that the recapture penalty under section 72(t)(4)(A) supersedes the levy exception provision under section 72(t)(2)(A)(vii). In doing so, we conclude that respondent’s Appeals Office did not act in an arbitrary or capricious manner in disregarding petitioner’s position that a levy upon his IRA account would result in not only a significant withdrawal from his account, but an unduly and overly intrusive depletion of most of the account as a result of the application of the recapture tax. As to petitioner’s argument that respondent’s Appeals Office did not consider petitioner’s position that the proposed levy is unfair in the light of his inability to work and medical conditions, we are unpersuaded that any issue of fact exists. Petitioner presented no evidence at the time of the hearing that he was unable to work. He merely stated that due to a tight job market in the telecommunications industry he was unable to find “worthwhile” work. Although petitioner did include mention in his Explanation (attached to the original OIC) that he had undergone “two angioplasty procedures”, he offered no additionalPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 NextLast modified: March 27, 2008