                        T.C. Summary Opinion 2018-59



                        UNITED STATES TAX COURT



                  KELLY CHAFIN LIM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 26924-17S.                       Filed December 26, 2018.



      Kelly Chafin Lim, pro se.

      Jay D. Adams and Sarah E. Sexton Martinez, for respondent.



                             SUMMARY OPINION


      ARMEN, Special Trial Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect when the
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petition was filed.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 case.

      Respondent determined a deficiency in petitioner’s Federal income tax of

$1,335 for 2015. After concessions by respondent2 and without regard to

computational adjustments, the sole issue for decision is whether a loan petitioner

obtained from a deferred compensation plan, but defaulted on, constitutes a

taxable distribution under section 72(p). The Court holds that it does to the extent

stated herein.




      1
        All subsequent 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.
      2
         Respondent concedes that petitioner is not liable for the 10% additional
tax under sec. 72(t) on early distributions from qualified retirement plans.
Notably, respondent did not determine such additional tax in the notice of
deficiency but arguably asserted an increased deficiency based on the additional
tax in his pretrial memorandum. See sec. 6214(a). In any event, at trial
respondent conceded any claim to the additional tax.
       Also at trial, see infra p. 6, respondent conceded a modest portion of the
distribution that gives rise to the deficiency he determined in the notice of
deficiency.
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                                     Background

      Some of the facts have been stipulated, and they are so found. The Court

incorporates by reference the parties’ stipulation of facts and single accompanying

exhibit.

      Petitioner resided in the State of Illinois at the time that the petition was

filed with the Court.

      Petitioner worked as an office assistant and human services caseworker for

the State of Illinois from May 2006 through June 1, 2017. By virtue of her

employment with the State, petitioner participated in a section 457 deferred

compensation plan (457 Plan) for which T. Rowe Price Retirement Services, Inc.

(T. Rowe Price), served as the custodian.

      The 457 Plan permitted participants to apply for loans. In February 2015

petitioner applied for and received a loan. The promissory note determined the

amount financed as follows:

             Amount given to you directly                 $8,000
             Prepaid finance charge paid to creditor
              [i.e., plan custodian]                           75
             Amount financed                                7,925

      The accompanying Federal Truth-In-Lending Disclosure Statement

specified the following:
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            Amount Financed                      $7,925.00
            Finance Charge                         $788.44
            Annual Percentage Rate                   4.86%
            Total of Payments                    $8,713.44

            Payment Schedule: 48 monthly payments of $181.53

      Loan documents furnished to petitioner as the borrower at the time of her

loan included the following paragraphs:

             Borrower understands that the occurrence of any of the
      following events shall be a default under this Note: (a) failure to pay
      any principal or interest when due * * * . If Borrower defaults,
      Borrower understands that failure to cure the default by the time (if
      any) specified in the plan documents or the plan loan procedures, the
      total balance of the outstanding loan * * * will be deemed to be a
      distribution to Borrower, which may be wholly or partially taxable.

                   *     *      *     *      *      *        *

             Borrower understands that there are special problems
      associated with loan defaults and that potential adverse tax
      consequences exist as a result of a default * * *. Failure to make
      payments when due for any reason, or if any default occurs as
      described herein, * * * then the Loan will be in default * * *. If not
      repaid, the defaulted loan amount will be reported to Borrower and to
      the Internal Revenue Service as taxable income.

      By letter dated July 27, 2015, T. Rowe Price advised petitioner that she was

“behind approximately 4 payments” and that “your loan is delinquent and in

danger of being in default.” The letter went on to advise petitioner: “Your loan’s
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date of default, as determined by the Plan sponsor [i.e., the State of Illinois], is

September 30, 2015.”

      Petitioner did not cure the delinquency, and she defaulted on her loan in

2015. During the life of the loan petitioner made a single monthly payment, and

the outstanding loan balance at the time of default was $7,846.80.

      T. Rowe Price sent petitioner a Form 1099-R, Distributions From Pensions,

Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., for

2015 regarding the defaulted loan. Box 1 (“Gross distribution”) and box 2a

(“Taxable amount”) of the Form 1099-R listed $7,951.28 as both the gross

distribution and the taxable amount.

      Petitioner timely filed a Federal income tax return for 2015. On her return

petitioner reported total income consisting of the following:

             Wages (line 7)                                   $51,785
             Taxable IRA distributions (line 15b)               1,704
                                                                 1
             Taxable pension/annuity amount (line 16b)             185
             Total Income (line 22)                           $53,674
      1
        On line 16a (“Gross Pension/Annuity amount”) petitioner reported
$10,273. The record does not include a meaningful explanation of what either this
amount or the amount on line 16b represents, much less the rationale by which
petitioner determined those amounts. In any event the record is clear that
petitioner only included the amount on line 16b in total income on line 22.
                                         -6-

       On her return petitioner reported a total tax liability of $3,808, claimed

withholding from her wages of $7,174, and received a refund of the difference,

i.e., $3,366.

       After examining petitioner’s 2015 return, respondent determined a

deficiency in tax of $1,335. The only substantive adjustment giving rise to the

deficiency was an adjustment of $7,951 based on the defaulted loan and the Form

1099-R issued by T. Rowe Price.

       In a timely filed petition, petitioner commenced the present case challenging

respondent’s deficiency determination.

       At trial respondent conceded that the $7,951 adjustment was overstated in

that it failed to account for the one payment that petitioner did make in respect of

her loan. See supra note 2.

                                     Discussion

A. Burden of Proof and Burden of Production

       As a general rule, the Commissioner’s determinations in a notice of

deficiency are presumed correct and the taxpayer bears the burden of showing that

those determinations are erroneous. Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290 U.S. 111, 115

(1933). However, in an unreported income case the Commissioner is obliged to
                                        -7-

introduce at least a minimal evidentiary foundation before the presumption of

correctness will attach. E.g., Pittman v. Commissioner, 100 F.3d 1308, 1316-1317

(7th Cir. 1996), aff’g T.C. Memo 1995-243; Weimerskirch v. Commissioner, 596

F.2d 358 (9th Cir. 1979), rev’g 67 T.C. 672 (1977); Rivas v. Commissioner, T.C.

Memo. 2016-158, at *4. Such an evidentiary foundation exists in the present case,

as the record clearly demonstrates that petitioner was employed by the State of

Illinois throughout 2015, participated in the 457 Plan, applied for and obtained a

loan from that plan, and defaulted on that loan, and that the plan custodian issued

a Form 1099-R regarding petitioner’s default.

      In addition, section 7491(a) may serve to place the burden of proof on the

Commissioner if the taxpayer introduces credible evidence and satisfies certain

other requirements. Petitioner did not allege that section 7491(a) applies, nor did

she introduce credible evidence or otherwise satisfy the requirements of section

7491(a). Accordingly, that section does not apply, and petitioner bears the burden

of proof.

      Finally, section 6201(d) places the burden of production on the

Commissioner “if a taxpayer asserts a reasonable dispute with respect to any item

of income reported on an information return filed with the * * * [Commissioner]

by a third party and the taxpayer has fully cooperated with the * * *
                                          -8-

[Commissioner] (including providing, within a reasonable period of time, access

to and inspection of all witnesses, information, and documents within the control

of the taxpayer as reasonably requested by the * * * [Commissioner])”. Petitioner

did not allege that section 6201(d) applies. But more importantly, petitioner did

not assert a reasonable dispute with respect to the Form 1099-R that T. Rowe Price

filed with respondent, nor does the record suggest that she fully cooperated with

him, as respondent was obliged to issue a subpoena duces tecum to T. Rowe Price

in order to obtain relevant documentation regarding petitioner’s account with the

457 Plan and her loan.3 In sum, respondent does not bear the burden of

production, but even if he did, that burden was satisfied by respondent’s

introduction of evidence in the form of the documents subpoenaed from T. Rowe

Price.

B. Deemed Distribution

         Gross income includes “all ‘accessions to wealth, clearly realized, and over

which the taxpayers have complete dominion.’” James v. United States, 366 U.S.

213, 219 (1961) (quoting Commissioner v. Glenshaw Glass Co., 348 U.S. 426,

         3
         Perhaps emblematic of petitioner’s lack of cooperation in this case was
her refusal to stipulate to her 2015 income tax return. Also, respondent’s
concession of the very modest portion of the amount of the defaulted loan
occurred only after the Court questioned respondent’s counsel about the
consequence of petitioner’s making one payment in respect of her loan.
                                         -9-

431 (1955)); see sec 61(a). Thus, gross income includes, but is not limited to,

items such as compensation, annuities, income from life insurance and endowment

contracts, and pensions. Sec. 61(a)(1), (9), (10), (11). Further, section

457(a)(1)(A) provides that “[a]ny amount of compensation deferred under an

eligible deferred compensation plan, and any income attributable to the amounts

so deferred, shall be includible in gross income only for the taxable year in which

such income or other income is paid to the participant or other beneficiary”.4

      Insofar as the taxation of a loan from a deferred compensation plan is

concerned, section 72(p) provides the applicable rules for decision. Accordingly,

we turn our attention to that section.

      As a general rule, section 72(p)(1)(A) provides that if a participant or

beneficiary receives, directly or indirectly, any amount as a loan from a qualified

employer plan, then that amount shall be treated as having been received by such

individual as a distribution under that plan. See generally Martinez v.

Commissioner, T.C. Memo. 2016-182, at *2-*3; Plotkin v. Commissioner, T.C.

Memo. 2001-71, slip op. at 6-7 (and cases cited thereat). For purposes of this rule,

      4
         An “eligible deferred compensation plan” is defined by sec. 457(b) as a
plan established and maintained by an eligible employer having certain specified
characteristics. In turn, sec. 457(e)(1)(A) defines “eligible employer” to include a
State. There is no issue in the present case that the 457 Plan was an eligible
deferred compensation plan within the meaning of sec. 457.
                                        - 10 -

a “qualified employer plan” includes a government plan, sec. 72(p)(4)(A)(ii), and a

“government plan” includes any plan, whether or not qualified, established and

maintained for its employees by a State, sec. 72(p)(4)(B). Therefore, as a

government plan, the 457 Plan constitutes a qualified employer plan.

      From the foregoing it follows that the making of a loan from a qualified

employer plan gives rise to a deemed distribution that is taxable for the year in

which the loan is received. However, section 72(p)(2)(A) provides an exception

for certain loans. Thus, as relevant herein given the value of petitioner’s account

in the 457 Plan, the mere making of a loan (1) that does not exceed the greater of

one-half of the nonforfeitable accrued benefit of the employee under the plan or

$10,000, (2) that is repayable within five years, and (3) that provides for

substantially level amortization (with payments not less frequent than quarterly)

does not give rise to a deemed distribution. See sec. 72(p)(2)(A)(ii), (B)(i), (C).

      Although a loan may initially satisfy the requirements of section

72(p)(2)(A) at the time that it is made, a deemed distribution may nevertheless

occur subsequently because of the failure to repay the loan consistent with the loan

agreement, e.g., because of the failure to amortize the loan on a substantially level

basis. Sec. 72(p)(2)(C). Accordingly, if a default occurs, a distribution is deemed

to occur at that time in the amount of the then-outstanding balance of the loan.
                                          - 11 -

      In the present case there is no dispute that petitioner defaulted on the 457

Plan loan in 2015 because of her failure to make the requisite payment within the

cure period. The record demonstrates that the balance due at the time of the

default was $7,846.80. Thus, pursuant to section 72(p)(1)(A), a distribution is

deemed to have been made at such time and in such amount, and, pursuant to

section 457(a)(1), the distribution is taxable for 2015.

      It is no answer to the foregoing that petitioner did not receive a taxable

distribution because she was merely borrowing her own money. Although it is

true that loan proceeds do not generally constitute gross income, and even if a loan

is made for a worthwhile purpose, any such contention would ignore the fact that

petitioner borrowed pretax dollars, i.e., compensation that had not previously been

taxed. Accordingly, the defaulted loan from petitioner’s 457 Plan account became

taxable (pursuant to section 72(p)(1)(A)) in the same manner that a distribution

from it would have been taxable if petitioner had simply closed the account and

withdrawn the balance therein. In each instance the amount distributed would be

taxable (pursuant to section 457(a)(1)) because it represented income that had not

previously been taxed.

      Finally, the Court has considered petitioner’s remaining arguments and find

them to be irrelevant or without merit.
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      To reflect the Court’s disposition of the disputed issue, as well as

respondent’s concession,


                                                Decision will be entered

                                       under Rule 155.
