Shawn Timothy Hynes - Page 7




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          the taxpayer.  In certain circumstances, however, if the taxpayer           
          introduces credible evidence with respect to any factual issue              
          relevant to ascertaining the proper tax liability, section 7491             
          shifts the burden of proof to the Commissioner.  Sec. 7491(a)(1);           
          Rule 142(a)(2).  Petitioner did not argue that section 7491 is              
          applicable, and he did not establish that the burden of proof               
          should shift to respondent.  Petitioner, therefore, bears the               
          burden of proving that respondent’s determination in the notice             
          of deficiency is erroneous.  See Rule 142(a); Welch v. Helvering,           
          supra at 115.  With respect to any penalty or addition to tax,              
          however, section 7491(c) places the burden of production on the             
          Commissioner.                                                               
               With respect to the first issue involved in this case,                 
          section 72(t) imposes an additional tax on distributions from a             
          QRP equal to 10 percent of the portion of such amount that is               
          includable in gross income unless the distribution comes within             
          one of several exceptions.  For purposes of the 10-percent                  
          additional tax, a QRP includes both a section 401(k) pension plan           
          and an individual retirement account.  See secs. 72(t)(1),                  
          401(a), (k)(1), 4974(c)(1), (4), (5).                                       
               Section 72(t)(2) enumerates the exceptions to the 10-percent           
          additional tax for early distributions from QRPs.  There is no              
          economic hardship exception to the 10-percent additional tax                






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