                        T.C. Memo. 2009-272



                     UNITED STATES TAX COURT



                CAROLYN D. HEMRICK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8648-07.               Filed November 25, 2009.



     Carolyn D. Hemrick, pro se.

     Lynn M. Curry, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   Respondent determined a $12,059 deficiency

in petitioner’s 2005 Federal income tax.     The sole issue for

decision is whether pursuant to section 72(t)(1) petitioner is
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liable for a 10-percent additional tax on early distributions

from her Federal Employees’ Thrift Savings Plan (TSP) account.1

                            Background

     The parties have stipulated some facts, which are so found.

When she petitioned the Court, petitioner resided in Florida.

     In 1977 petitioner took a civil service position in the U.S.

Air Force Reserve.   In 2004 she was working full time in this

position at night and serving in the Florida Air National Guard

one weekend a month when she began working a day job as an

operations supervisor for Mercedes-Benz USA, L.L.C.

     In 2005 petitioner was discharged from military duty upon a

certification of medical disqualification for worldwide duty

because of a medication she was taking.   Upon losing her military

membership, she was relieved of her civil service job.    She

withdrew the $120,603 of funds in her TSP account.    Petitioner

had not attained age 55 during her 2005 taxable year.    She has

continued working at Mercedes-Benz USA, L.L.C., earning more than

she did in her civil service job.

     On her 2005 Form 1040, U.S. Individual Income Tax Return,

petitioner included the $120,603 of TSP distributions in gross

income.   By notice of deficiency, respondent determined that




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year at
issue.
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petitioner owed a 10-percent additional tax on these TSP

distributions.

                            Discussion

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

tax on early distributions from a “qualified retirement plan”.

The TSP is a qualified retirement plan.     See secs. 4974(c)(1),

7701(j)(1); Dollander v. Commissioner, T.C. Memo. 2009-187.     It

is undisputed that petitioner’s TSP distributions of $120,603

were early distributions made before she had attained the age of

59-1/2 years.

     Imposition of the 10-percent additional tax is subject to

various exceptions.2   See sec. 72(t)(2).   At issue is the

exception in section 72(t)(2)(A)(iii), pertaining to

distributions that are attributable to an employee’s being

“disabled” within the meaning of section 72(m)(7), which

provides:

     Meaning of disabled.--For purposes of this section, an
     individual shall be considered to be disabled if he is
     unable to engage in any substantial gainful activity by
     reason of any medically determinable physical or mental
     impairment which can be expected to result in death or
     to be of long-continued and indefinite duration. An
     individual shall not be considered to be disabled
     unless he furnishes proof of the existence thereof in
     such form and manner as the Secretary may require.


     2
      One exception which the parties have not discussed pertains
to distributions made to an employee after separation from
service after attaining age 55. Sec. 72(t)(2)(A)(v). This
exception is inapplicable to petitioner’s TSP distributions
because she had not attained age 55 in taxable year 2005.
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     Petitioner does not contend that she was ever functionally

disabled or that her health problems have in any way prevented

her from holding gainful employment.   To the contrary, she

testified forthrightly:   “I’m not disabled today.   I wasn’t

disabled the day I got out.   I’ve been working ever since and I

continue to work.”   Petitioner’s contention, as best we

understand it, is that when she lost her membership in the

Florida Air National Guard, its personnel department advised her

that she could withdraw her TSP funds without penalty and

provided her “documentation” for this penalty-free treatment.

That “documentation”, which petitioner has offered into evidence,

consists of a single photocopied paragraph, captioned

“(DISABILITY RETIREMENT UNDER PL 97-253 SPECIAL PROVISIONS)”.

This document appears to pertain to amendments to the Civil

Service Retirement Act, 5 U.S.C. secs. 8331-8351 (2000), relating

to the conditions pursuant to which National Guard personnel may

be administratively granted disability retirement.

     We have no reason to question petitioner’s honesty or

veracity as to the advice she may have received.     Unfortunately

for her, however, neither that advice nor the “documentation” she

has presented affords her any relief in this proceeding.    In the

first instance, the “documentation” upon which she relies does

not purport to address the taxation of TSP distributions.

Moreover, even if it did, it would not affect the tax treatment
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under the Internal Revenue Code.    See sec. 7701(j)(5) (“No

provision of law not contained in this title [the Internal

Revenue Code] shall apply for purposes of determining the

treatment under this title of the Thrift Savings Fund or any

contribution to, or distribution from, such Fund.”).

     Inasmuch as petitioner concedes that she is not disabled

within the meaning of section 72(m)(7) and has not asserted or

established that any other exception to the general rule of

section 72(t)(1) applies, her early TSP withdrawals are subject

to the 10-percent additional tax.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
