                  T.C. Summary Opinion 2011-113



                      UNITED STATES TAX COURT



                GAIL MARIE WATSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14769-10S.             Filed September 28, 2011.



     Gail Marie Watson, pro se.

     Ryan M. Wyzik, for respondent.



     DAWSON, Judge:   The petition in this case was filed pursuant

to the provisions of section 7463.1   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year at
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 2 -

case.   Respondent determined a deficiency of $3,000.60 in

petitioner’s 2008 Federal income tax.    The case is before the

Court on respondent’s motion for summary judgment under Rule 121.

Petitioner filed a response opposing the motion.

     The only issue for decision is whether pursuant to section

72(t)(1) petitioner is liable for a 10-percent additional tax on

early distributions from a qualified retirement plan.

                            Background

     Petitioner resided in Washington, D.C., at the time she

filed her petition.   All 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, who was born in 1953, was a full-time employee

of the Association of American Medical Colleges (AAMC) from March

1, 1981, until her retirement on December 30, 2006.    She was then

53 years of age.

     Petitioner was a participant in AAMC’s qualified retirement

plan, identified as TIAA-CREF as Agent for JP Chase Bank

Retirement Plans Trustee.   In 2008 petitioner received two

distributions totaling $30,006 from AAMC’s qualified retirement

plan.   She reported on line 16(b) of her 2008 Federal income tax

return that she received $30,006 from pensions and annuities,

which represented the gross distributions from AAMC’s qualified
                                - 3 -

retirement plan.    She was 55 years of age when she received the

distributions.

     When petitioner timely filed her 2008 Federal income tax

return, she included in income the total $30,006 received as

distributions from AAMC’s qualified retirement plan and paid tax

on that amount.    But she did not include the 10-percent

additional tax of $3,000.60.

     Respondent’s notice of deficiency determined that petitioner

is liable for the 10-percent additional tax of $3,000.60 because

she received the distributions before she attained age 59-1/2 and

the payments did not qualify for the exceptions set forth in

section 72(t)(2)(A)(i) and (v).

                             Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where

there is no genuine issue of material fact and a decision may be

rendered as a matter of law.    Rule 121(a) and (b); Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988).      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.       Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994).   However, the party opposing the summary judgment

must set forth specific facts that show a genuine issue of
                                         - 4 -

material fact exists and may not rely merely on allegations or

denials in the pleadings.            Rule 121(d).    Here there is no genuine

issue of material fact and a decision may be rendered as a matter

of law.

     Section 72(t) provides, in pertinent part, as follows:

          SEC. 72(t). 10-Percent Additional Tax on Early
     Distributions from Qualified Retirement Plans.

                   (1) Imposition of additional tax.--If any
              taxpayer receives any amount from a qualified
              retirement plan (as defined in section 4974(c)),
              the taxpayer’s tax under this chapter for the
              taxable year in which such amount is received
              shall be increased by an amount equal to 10
              percent of the portion of such amount which is
              includible in gross income.

                   (2) Subsection not to apply to certain
              distributions.--Except as provided in paragraphs
              (3) and (4), paragraph (1) shall not apply to any
              of the following distributions:

                          (A)       In general.--Distributions which are--

                             (i) made on or after the date on which
                   the employee attains age 59½,

          *        *            *         *         *      *       *

                               (v) made to an employee after separation
                          from service after attainment of age 55 * * *

     Respondent contends that petitioner does not qualify for the

exception to the 10-percent additional tax under section

72(t)(2)(A)(v) because she had not attained age 55 on or before

December 30, 2006, when she separated from service with her

employer, AAMC.        She was then age 53.      He interprets the phrase

“[Distribution] * * * made to an employee after separation from
                               - 5 -

service after attainment of age 55” as meaning the employee must

have separated from employment after reaching age 55.   To the

contrary, petitioner asserts that she qualifies for the exception

to the additional 10-percent tax on the early distributions from

AAMC’s qualified retirement plan because she was 55 years of age

when she received them in 2008 even though she had separated in

2003 from service with her employer.   In her response to the

motion for summary judgment, petitioner points out that the

statement in the explanation of the deficiency notice, i.e.,

“Payment made from the Plan after you separate from service if

you will be at least 55 during the year of the payment”, was

misleading and she should not have to pay the 10-percent

additional tax.   Although we acknowledge that the statement may

have been confusing to petitioner, we think the law is clear.

     We agree with respondent’s interpretation of section

72(t)(2)(A)(v) and conclude that petitioner is liable for the 10-

percent additional tax.   See Owusu v. Commissioner, T.C. Memo.

2010-186; Hemrick v. Commissioner, T.C. Memo. 2009-272, n.2.

Moreover, the following legislative history regarding the age 55

exception supports our conclusion:

          In all cases, the exception applies only if the
     participant has attained age 55 on or before separation
     from service. Thus, for example, the exception does
     not apply to a participant who separates from service
     at age 52, and, pursuant to the early retirement
     provisions of the plan, begins receiving benefits at or
     after age 55. * * *
                                 - 6 -

H. Conf. Rept. 99-841 (Vol. II), at II-456 to II-457 (1986),

1986-3 C.B. (Vol. 4) 1, 456-457.    In view of that explanation we

think any possible ambiguity in section 72(t)(2)(A)(v) is

resolved.

     Likewise, the exception in section 72(t)(2)(A)(i) does not

apply to petitioner because she was obviously less than 59-1/2

years of age when she received $30,006 in distributions from

AAMC’s qualified retirement plan in 2008.

     While petitioner believes it is unfair and inequitable2 in

these circumstances to hold her liable for the 10-percent

additional tax, and we have sympathy for her plight, there is no

statutory authority to hold otherwise in this situation.       Only

Congress can change the statute.

     Accordingly, we will grant respondent’s motion for summary

judgment.

     To reflect the foregoing,


                                         An appropriate order and

                                 decision will be entered.




     2
      Petitioner states: “I don’t understand all the laws of
government but one thing I do understand and can’t believe is
that the government will come after the poor and the rich go
free”.
