                        T.C. Memo. 2010-148



                      UNITED STATES TAX COURT



                HARRY K. AMESBURY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23871-08.             Filed July 12, 2010.



     Harry K. Amesbury, pro se.

     Stephen R. Takeuchi, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   Respondent determined a deficiency of $3,614

in petitioner’s Federal income tax for 2004 and additions to tax

under sections 6651(a)(1) and (2) and 6654(a).   Respondent has

now conceded the addition to tax under section 6651(a)(2).   The

main issue for decision is whether petitioner is liable for the

10-percent penalty for early withdrawal from an individual
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retirement account (IRA).   All section references are to the

Internal Revenue Code in effect for the year in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

                         FINDINGS OF FACT

     Some of the facts have been deemed stipulated under Rule

91(f) by reason of petitioner’s failure to respond to an order to

show cause.   Petitioner resided in Florida at the time that he

filed his petition.

     During 2000, petitioner purchased securities through E-Trade

Securities.   At some point in 2000, the securities were sold to

satisfy petitioner’s debt for stocks acquired on margin.

Petitioner did not file a Federal income tax return for 2000.     In

about 2003, he was contacted by the Internal Revenue Service

(IRS) because the proceeds of the securities sold to pay his debt

were reported to the IRS.   The IRS assessed a tax liability for

2000 and placed a lien on petitioner’s property.

     During 2004, in order to avoid IRS collection efforts

related to the assessment for 2000, petitioner withdrew $20,444

from his USAA Federal Savings Bank IRA.     Petitioner also received

$361 in interest during 2004.   Thereafter petitioner was able to

show that he did not have a gain on sale of the securities, the

assessment was abated, and the lien was released.
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     Petitioner did not file a Federal income tax return for 2003

or 2004.   Respondent determined a deficiency for 2004 that

included income tax and an additional tax of 10 percent on the

early withdrawal from the IRA, as well as additions to tax for

failure to file and for failure to pay estimated taxes.

                              OPINION

     Section 72(t)(1) imposes an additional tax of 10 percent on

amounts received from a qualified retirement plan, absent

exceptions set forth in section 72(t)(2).

     Petitioner does not dispute his receipt of income or his

failure to file a return for 2004.       His entire argument is that

the IRS was wrong in actions taken starting in 2003 to collect

taxes erroneously determined for 2000 and that the wrongful

conduct caused the early withdrawal from his IRA.

     Although petitioner’s liability for the tax year 2000 is not

before us, the parties were invited to supplement the record

after trial with an explanation of what occurred with respect to

petitioner’s 2000 liability, but petitioner declined the

invitation.   He prefers to assert, without factual foundation,

that he was treated wrongfully by the IRS and that, therefore, he

should not be held liable for the amounts determined for 2004.

Even if he were correct that IRS actions with respect to 2000

were erroneous, which we cannot conclude, those actions would not

affect his liability for 2004.    He has not shown any error in
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respondent’s determination, and he has not shown any applicable

exception to the additional tax imposed under section 72(t).

Because the material facts in this case are deemed stipulated and

otherwise are undisputed, there is no issue with respect to

burden of production or burden of proof under section 7491.

     Petitioner’s argument does not constitute reasonable cause

for his failure to file a return for 2004, and he is liable for

the addition to tax under section 6651(a)(1).    Because he failed

to file a return for 2003, he was required to pay estimated taxes

equal to 90 percent of the tax owed for 2004.    See sec.

6654(d)(1)(B).   He failed to make those payments, and no

exception to the addition to tax under section 6654 applies.       See

Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980).

     To reflect the foregoing, including respondent’s concession,


                                        Decision will be entered

                                 for respondent except for the

                                 section 6651(a)(2) addition to

                                 tax.
