                  T.C. Summary Opinion 2004-135



                     UNITED STATES TAX COURT



              CHARLOTTE MARIE SCOTT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12045-03S.            Filed September 30, 2004.



     Charlotte Marie Scott, pro se.

     Charlotte Mitchell, for respondent.



     GOLDBERG, Special Trial Judge:     This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.     The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.     Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year in issue.
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       Respondent determined a deficiency in petitioner’s Federal

income tax of $1,000.11 for the taxable year 2000.

       The issue for decision is whether petitioner is liable for

the 10-percent additional tax on an early distribution pursuant

to section 72(t).

       Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Hillsborough, California, on the date the petition was filed in

this case.

       Charlotte Marie Scott (petitioner) began working for Digital

Equipment Corp. in 1985.    Petitioner worked 13 years for Digital

Equipment Corp. until she was laid off in 1998.    During her

employment with Digital Equipment Corp., petitioner set up an

Individual Retirement Account (IRA).    This IRA was established

through Donaldson, Lufkin and Jenrette Securities Corp. as an

agent for Gruntal and Co., LLC.    At the end of her employment,

this account was valued at about $30,000.

       After being laid off from Digital Equipment Corp.,

petitioner received unemployment benefits for the remainder of

1998 to April 1999, when she was employed by High Voltage

Engineering Corp. (referred to as Robicon).    Petitioner worked

for Robicon from April to October 1999, when she was again laid

off.    While with Robicon, petitioner became a member of her
                                - 3 -

employer’s 401(k) qualified retirement plan.    This retirement

plan was established by Robicon through Vanguard Fiduciary Trust

Co.   At the time of her dismissal from Robicon, the plan was

valued at about $1,170.    After her dismissal from Robicon,

petitioner once again began to receive unemployment benefits for

the remainder of 1999.

      Petitioner moved from Pennsylvania to California in January

2000 to care for her sister.    Petitioner was receiving

unemployment benefits from the Commonwealth of Pennsylvania when

she moved to California.    However, petitioner did not receive

unemployment benefits from California in 2000 because she was not

eligible.

      During 2000, petitioner had a sporadic employment record.

Between January and April 2000, petitioner was employed on a

“project by project” basis by Changing Places, a packing and

moving company.   From April 2000 until the end of the year,

petitioner was employed on a “project by project” basis designing

closets by Ronald Duerksen.    Petitioner earned purely commission

income from her employment with Ronald Duerksen, and such

compensation was reported on her Schedule C, Profit or Loss From

Business.

      During 1999, petitioner had COBRA medical insurance coverage

due to her previous employment at Robicon.    Petitioner paid a

$239 per month insurance premium for the insurance policy, which
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covered only herself.   However, in 2000, petitioner extended her

COBRA coverage to include her husband, which resulted in her

premiums increasing to $772 per month.     Petitioner was notified

in 2001 that such coverage was canceled retroactively to November

2000 due to unpaid premiums.    Petitioner would eventually file

for bankruptcy in 2001.

     During 2000, the year in issue, petitioner withdrew

$1,168.39 from her Vanguard 401(k) qualified retirement plan and

$10,000 from her Gruntal IRA.    Petitioner did not roll over the

distributed amounts into another qualified employee retirement

plan or individual retirement plan.     Petitioner reported the

$11,168.39 combined amount withdrawn on her 2000 Federal income

tax return.   Although the amount of the distributions was

reported on the return, petitioner did not compute the 10-percent

additional tax due for the early withdrawals.     Petitioner, who

was born in 1948, was 52 years of age in 2000 when the

distributions were made.

     Petitioner filed a joint Federal income tax return with her

then-husband, Robert J. Scott, for the taxable year 2000.

Between January and July 2000, Mr. Scott was a salesman with the

Pittsburgh Post Gazette.    In July, he moved to San Francisco,

California, to live with petitioner and began work with the San

Francisco Chronicle, where he remained employed until November

when he left for Florida.
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     In the notice of deficiency, the Commissioner determined a

deficiency in the amount of $1,000.11.1   This amount represents a

10-percent additional tax on the early IRA distribution pursuant

to section 72(t).2

     Although admitting that the early distributions were made,

the gist of petitioner’s contention is that she is not liable for

the additional tax on the IRA distribution because it was (1)

used to pay medical insurance premiums and therefore met the

requirements of the section 72(t)(2)(D) exception, (2) used to

pay medical expenses and therefore met the requirements of

section 72(t)(2)(B), and/or (3) made because of financial

hardship, therefore making the application of the 10-percent

additional tax inequitable.

     Section 72(t)(1) generally imposes a 10-percent additional

tax on early distributions from “a qualified retirement plan (as

defined in section 4974(c)),” unless the distributions come

within one of several statutory exceptions.

     The parties do not dispute that petitioner’s accounts were

qualified employee retirement plans and that petitioner did not

“roll over” her distributions pursuant to section 408(d)(3).


     1
      The record is unclear as to how the Commissioner calculated
the amount of deficiency.
     2
      The Commissioner’s notice of deficiency mentioned the
additional tax only with regard to petitioner’s IRA distribution;
there was no mention of her 401(k) qualified retirement plan
distribution.
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Therefore, in order for petitioner to prevail, she must show that

the distributions fall under one of the exceptions under section

72(t)(2).

     With respect to section 72(t), this Court has repeatedly

held that it is bound by the list of statutory exceptions

enumerated in section 72(t)(2).    See, e.g., Arnold v.

Commissioner, 111 T.C. 250, 255-256 (1998); Schoof v.

Commissioner, 110 T.C. 1, 11 (1998); Clark v. Commissioner, 101

T.C. 215, 224-225 (1993); Swihart v. Commissioner, T.C. Memo.

1998-407; Pulliam v. Commissioner, T.C. Memo. 1996-354; Roundy v.

Commissioner, T.C. Memo. 1995-298, affd. 122 F.3d 835 (9th Cir.

1997).

     The exceptions relevant to the case at hand are found in

section 72(t)(2)(D) and section 72(t)(2)(B).    Section

72(t)(2)(D), provides that the following distributions are not

subject to the additional tax:

          (i) In General.--Distributions from an individual
     retirement plan to an individual after separation from
     employment--

                 (I) if such individual has received
            unemployment compensation for 12 consecutive weeks
            under any Federal or State unemployment
            compensation law by reason of such separation,

                 (II) if such distributions are made during
            any taxable year during which such unemployment
            compensation is paid or the succeeding taxable
            year, and

                 (III) to the extent such distributions do not
            exceed the amount paid during the taxable year for
                                - 7 -

           insurance described in section 213(d)(1)(D) with
           respect to the individual * * * .

          (ii) Distributions After Reemployment.-–Clause (i)
     shall not apply to any distribution made after the
     individual has been employed for at least 60 days after
     the separation from employment to which clause (i)
     applies.

          (iii) Self-Employed Individuals.-–To the extent
     provided in regulations, a self-employed individual
     shall be treated as meeting the requirements of clause
     (i)(I) if, under Federal or State law, the individual
     would have received unemployment compensation but for
     the fact the individual was self-employed.

     Section 72(t)(2)(D) provides that the additional tax on

early distributions does not apply to “Distributions from an

individual retirement plan to an individual”.    (Emphasis added.)

An “individual retirement plan” is defined as:   “(A) an

individual retirement account described in section 408(a), and

(B) an individual retirement annuity described in section

408(b).”   Sec. 7701(a)(37) (an individual retirement plan is

commonly referred to as an IRA).

     It is clear that the retirement plan established by Robicon,

from which petitioner withdrew the $1,168.39 distribution, was a

qualified retirement plan described in section 401(a), and,

therefore, the exception contained in section 72(t)(2)(D) does

not apply.   Under the statutory language it is clear that section

72(t)(2)(D) does not apply to petitioner’s 401(k) qualified

retirement plan distribution.
                                - 8 -

     After petitioner was dismissed from employment at Robicon at

the end of October 1999, she claims she received unemployment

benefits for the remainder of 1999.     However, petitioner also

testified that she was “sporadically” employed between January

and April 2000.    Petitioner stated that she requested her 401(k)

qualified retirement plan distribution in January 2000.

Therefore, even if section 72(t)(2)(D) did apply to such

distribution, based upon the record, this Court is unable to find

that petitioner received unemployment compensation for 12

consecutive weeks in the year of the distribution or the

preceding year as required by section 72(t)(2)(D)(i)(I).

     Petitioner has not substantiated receiving unemployment

compensation for 12 consecutive weeks in the year of the

distribution from her IRA or the preceding year.     Id.   Therefore,

she has not fulfilled the requirements of section 72(t)(2)(D)

with respect to her IRA, which would have enabled her to receive

a portion of her IRA distribution without paying the 10-percent

additional tax.3   We conclude that petitioner is not entitled to

an exception under section 72(t)(2)(D) from the 10-percent

additional tax imposed by section 72(t).     See sec. 72(t)(2)(D).


     3
      We note that even if petitioner had satisfied the
requirements of sec. 72(t)(2)(D), the sec. 72(t)(2)(D) exception
would have applied only to $7,723.60 of the $11,168 distribution,
which was the amount substantiated as used to pay for health
insurance premiums from January to October 2000, due to the fact
that petitioner’s insurance was canceled retroactively to
November 2000 for nonpayment.
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     In the petition to this Court, it is unclear whether

petitioner contended that her distributions were not subject to

the 10-percent additional tax because they were used for medical

expenses under section 72(t)(2)(B).   However, petitioner

introduced evidence that would suggest that such a claim might be

relevant; therefore, we shall discuss this contention.

     Section 72(t)(2)(B) provides that the following

distributions are not subject to the additional tax:

          (B) Medical Expenses.--Distributions made to the
     employee * * * to the extent such distributions do not
     exceed the amount allowable as a deduction under
     section 213 to the employee for amounts paid during the
     taxable year for medical care (determined without
     regard to whether the employee itemizes deductions for
     such taxable year).

The deduction allowed under section 213(a) is for “the expenses

paid during the taxable year, * * * for medical care * * * to the

extent that such expenses exceed 7.5 percent of adjusted gross

income.”

     On petitioner’s Schedule A, Itemized Deductions,4 petitioner

calculated that the total medical and dental expenses paid by her

and her husband in 2000 was $3,365.    Petitioner’s 2000 Federal

income tax return reflects that her and her husband’s joint

adjusted gross income was $54,340.    Therefore, 7.5 percent of



     4
      Petitioner decided against itemizing her deductions and
instead used the standard deduction in her 2000 joint Federal
income tax return. However, petitioner introduced her Schedule
A, Itemized Deductions, into evidence in this case.
                               - 10 -

their 2000 adjusted gross income was $4,076.    Thus, petitioner’s

expenses paid for medical care in 2000 did not satisfy the

requirements of section 72(t)(2)(B).    Therefore, the

distributions do not fall under the exception of section

72(t)(2)(B).

     Finally, petitioner contends that, because of her financial

hardship, the $11,168 should not be subject to the 10-percent

additional tax imposed by section 72(t).    Petitioner seeks relief

from the 10-percent additional tax imposed on her distributions

based on her financial hardship.   There is, however, no hardship

exception in the controlling statute, section 72(t).     This

principle has been applied consistently in cases dealing with

premature IRA distributions.   See Arnold v. Commissioner, 111

T.C. at 255; Gallagher v. Commissioner, T.C. Memo. 2001-34; Deal

v. Commissioner, T.C. Memo. 1999-352; Pulliam v. Commissioner,

T.C. Memo. 1996-354.   Thus, the IRA distribution received by

petitioner is subject to the 10-percent additional tax under

section 72(t).

     Moreover, petitioner alluded that her requests for her

distributions in 2000 were based on reliance of advice given to

her by her accountant.   The authoritative sources of Federal tax

law are the statutes, regulations, and judicial decisions.

Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without

published opinion 614 F.2d 1294 (2d Cir. 1979); Green v.
                                - 11 -

Commissioner, 59 T.C. 456, 458 (1972).    We have applied the

relevant statute, and we have concluded that respondent correctly

applied the law in this case.    Respondent’s imposition of the

additional tax is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                          Decision will be entered

                                     for respondent.
