                       T.C. Memo. 2005-124



                     UNITED STATES TAX COURT



     HENRY USCINSKI AND JACQUELINE USCINSKI, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1467-03.               Filed May 25, 2005.



     Henry Uscinski and Jacqueline Uscinski, pro sese.

     Scott A. Hovey, for respondent.



                       MEMORANDUM OPINION


     GERBER, Chief Judge:   This case is before the Court on

respondent’s motion for summary judgment.    The issue for our

consideration is whether petitioners were subject to a 10-percent
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additional tax under section 72(t)1 for an early pension

distribution.

                             Background

     At the time of the filing of the petition in this case,

petitioners resided in Great Falls, Virginia.

     Petitioners’ petition was filed on January 27, 2003.       Since

then, Henry Uscinski (Mr. Uscinski) has been incarcerated, and

mail addressed to Jacqueline Uscinski (Ms. Uscinski) was returned

as undeliverable.    Respondent attempted to contact petitioners to

engage in pretrial preparation such as stipulation of facts and

interrogatories.    Petitioners did not respond to respondent’s

requests.   Respondent then filed motions to cause proposed

stipulations of fact to be deemed admitted under Rule 91(f) and

to compel answers to interrogatories.     Petitioners did not

respond to the motions or to the Court’s orders issued in

connection therewith.    On March 29, 2004, the Court entered

orders deeming certain proposed facts and exhibits stipulated and

compelling answers to interrogatories.

     On April 1, 2004, respondent moved for summary judgment.

Thereafter, Mr. Uscinski, contending his incarceration made it

difficult to timely respond to court documents, filed a motion

for continuance of trial and for this Court to vacate its order



     1
       Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to sections of the Internal Revenue Code in effect
for 1999, the year in issue.
                                - 3 -

deeming certain facts stipulated and compelling answers to

interrogatories.    On April 15, 2004, the Court granted Mr.

Uscinski’s motions and gave petitioners additional time to show

cause why certain matters in the stipulation of facts should not

be deemed established and to respond to respondent’s motion to

compel answers to interrogatories.      Subsequently, Mr. Uscinski

responded to the interrogatories and addressed respondent’s

proposed stipulated facts.    On June 3, 2004, the Court entered an

order deeming certain facts stipulated on the basis of Mr.

Uscinski’s responses.    Petitioners did not respond to

respondent’s first motion for summary judgment.

     Among other things, Mr. Uscinski’s responses to

interrogatories and deemed stipulations of fact show the

following.   On or around December 15, 2000, petitioners filed a

joint 1999 Form 1040, U.S. Individual Income Tax Return,

reporting a $161,447 taxable pension distribution from a section

401(k) account held by Fidelity Investments.      Respondent sent

petitioners a notice of deficiency dated August 30, 2002, for

their 1999 tax year, determining a $16,340 tax deficiency and an

$817.01 addition to tax under section 6651(a)(1) for failure to

file.   The deficiency arose from respondent’s determination

that the distribution was subject to a 10-percent early

withdrawal tax.    In his response to respondent’s request for

interrogatories, Mr. Uscinski admitted that the distribution did
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not meet any of the exceptions enumerated within section 72(t),

other than his contention that the distribution was used to pay

for education expenses.

     On August 27, 2004, the Court issued an order denying

respondent’s first motion for summary judgment.    First, there was

a discrepancy between the deficiency determination and

petitioners’ return.    If the deficiency had been based on a 10-

percent additional tax on the $161,447 distribution, the

deficiency should have been $16,144.70.    Respondent, however,

determined a $16,340 deficiency.    In addition, the notice of

deficiency contained the determination of an addition to tax

under section 6651(a)(1) for failure to timely file their 1999

tax return.    However, the notice of deficiency and the first

motion for summary judgment alleged different due dates for the

1999 return.    Accordingly, we held that respondent failed to show

that there was no issue of a material fact.

     On March 10, 2005, respondent filed a second motion for

summary judgment, which is now before the Court.    For purposes

of that motion, respondent concedes that the amount of the

deficiency should be $16,144.70 and that there should be no

addition to tax for failure to file.    In the motion, respondent

provided several reasons as to why the distribution could not

have been for higher education expenses.    On April 15, 2005, Mr.
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Uscinski filed a response to respondent’s motion, arguing only

that nothing in Rule 121 permits successive or repeated motions

for summary judgment.

                            Discussion

     The purpose of summary judgment is to expedite litigation

and avoid the expense of unnecessary trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).   A motion for summary

judgment may be granted where there is no dispute as to a

material fact and a decision may be rendered as a matter of law.

See Rule 121.   The moving party bears the burden of proving that

there is no genuine issue of material fact, and factual

inferences are viewed in a light most favorable to the nonmoving

party.   Craig v. Commissioner, 119 T.C. 252, 260 (2002);

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).   The party opposing

summary judgment must set forth specific facts which show that a

question of genuine material fact exists and may not rely merely

on allegations or denials in the pleadings.    See Grant Creek

Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988);

Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).    On the

basis of respondent’s concessions, as noted above, the sole

dispute is whether the distribution is subject to a 10-percent

additional tax.
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     A 10-percent additional tax is imposed upon distributions

from a “qualified retirement plan”, unless the distribution

satisfies one of a number of exceptions enumerated under section

72(t)(2).   Sec. 72(t)(1) and (2).   A qualified retirement plan

includes a section 401(k) plan.    Secs. 72(t)(1), 401(a), (k)(1),

4974(c)(1).    The distribution was made from a qualified

retirement plan because petitioners acknowledge that the

distribution was made from a section 401(k) plan.    In addition,

Mr. Uscinski’s answers to interrogatories concede that the

distribution does not fall within any of the enumerated

exceptions to the imposition of the 10-percent additional tax,

with the exception of his allegation that the early distribution

was for education expenses.    Accordingly, we limit our discussion

to whether the distribution could satisfy the higher education

expense exception.

     The 10-percent additional tax imposed on early distributions

from qualified retirement plans does not apply to distributions

from individual retirement plans for higher education expenses.

Sec. 72(t)(2)(E).    An individual retirement plan is defined as an

individual retirement account or individual retirement annuity

(collectively IRAs) described in section 408(a) or (b).     Sec.

7701(a)(37).    Section 72(t)(2)(E) was added by the Taxpayer

Relief Act of 1997, Pub. L. 105-34, section 203(a), 111 Stat.

788, 809.   The report of the Committee on the Budget refers only

to tax-free withdrawals from IRAs for higher education expenses.
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See H. Rept. 105-148, at 288-289 (1997), 1997-4 C.B. (Vol. 1)

319, 610-611; see also Notice 97-60, sec. 4, 1997-2 C.B. 310,

317-318.

     Both section 401(k) plans and individual retirement plans

are subject to the general requirements of section 72(t).      See

secs. 72(t)(1), 401(a), (k)(1), 4974(c)(1), (4), (5).      However,

classification as a section 401(k) plan is separate and distinct

from classification as an individual retirement plan.      See secs.

401(k), 408(a) and (b).     The distribution in this case was from a

section 401(k) account, which does not fall within the IRA

category.    This conclusion is further supported by the statutory

definition of individual retirement plans, which includes plans

described in section 408 but not those described in section

401(k).    See sec.   7701(a)(37).   If the distribution had been

made from an IRA, it would have been reported on line 15b,

“Taxable amount” of “Total IRA distributions”, of petitioners’

Form 1040, not on line 16b where it was reported.      Because the

distribution was not from an IRA, it would not qualify for the

exception for higher education expenses, even if it were used for

higher education expenses.

     Petitioners stated in their petition that the distribution

was from a section 401(k) account, a fact which petitioners have

not denied.    Petitioners did not respond to the first summary

judgment motion, and the sole argument presented in the response

to the second motion is that Rule 121 does not provide for
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repeated motions for summary judgment.     This argument is without

merit.   Rule 121 does not prevent successive motions for summary

judgment.

     We conclude that petitioners are liable for the 10-percent

additional tax under section 72(t).

     To reflect the foregoing and respondent’s concessions,



                                            An appropriate order and

                                       decision will be entered.
