                         T.C. Memo. 2013-126




                   UNITED STATES TAX COURT




               LAURA UNG, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent




Docket No. 10182-11.                          Filed May 13, 2013.




       R determined a deficiency and a penalty for P’s 2008 tax year.
The primary issues are whether distributions from each of P’s two
qualified retirement plans are subject to the 10% additional tax on early
distributions pursuant to I.R.C. sec. 72(t) and whether P is liable for
the accuracy-related penalty under I.R.C. sec. 6662(a).

       Held: P does not qualify under any of the exceptions pursuant to
I.R.C. sec. 72(t) and is liable for the 10% additional tax for early
distributions from the retirement plans for 2008.

       Held, further, P is liable for the accuracy-related penalty pursuant to
I.R.C. sec. 6662(a) for 2008.
                                         -2-

[*2]   Laura Ung, pro se.

       Carolyn A. Schenck, for respondent.




             MEMORANDUM FINDINGS OF FACT AND OPINION


       WHERRY, Judge: This case is before the Court on a petition for

redetermination of a deficiency in petitioner’s income tax for the 2008 tax year.1

       After concessions the issues remaining are:2

       (1) whether a 2008 distribution of $20,000 from petitioner’s Morgan Stanley

& Co. retirement account qualifies under the first-time home purchase exception

pursuant to section 72(t)(2)(F);




       1
       Unless otherwise indicated, all section references are to the Internal Revenue
Code of 1986, as amended and in effect for the taxable year at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
       2
        Petitioner concedes that she had unreported wage income from Hardin
Hyundai of $7,046 for 2008. Petitioner concedes that she had unreported interest
income from her Citibank account of $11 for 2008. Petitioner also concedes that
she received a taxable distribution from her Fidelity Investments retirement account
of $256 that was unreported for 2008. Finally, petitioner concedes that she received
a $20,000 taxable distribution from her Morgan Stanley retirement account that was
originally unreported on her 2008 tax return.
                                          -3-

[*3]   (2) whether a 2008 distribution of $256 from petitioner’s Fidelity Investments

retirement account qualifies under any exception pursuant to section 72(t)(2); and

       (3) whether petitioner is liable for a section 6662(a) accuracy-related penalty

of $1,654 for 2008.

                                FINDINGS OF FACT

       The parties’ stipulation of facts, with accompanying exhibits, and the

supplemental stipulation of facts, with accompanying exhibits, are incorporated

herein by this reference. At the time the petition was filed, petitioner resided in

California.

       During 2008 petitioner held various financial records positions with Los

Angeles, California, area car dealerships.3




       3
        The notice of deficiency and petitioner’s petition to this Court originally
listed her first name as “Lora”. However, on petitioner’s 2008 tax return, her first
name is spelled “Laura”. During trial petitioner testified that she legally changed
her name about four or five years ago from “Lora” to “Laura”. Petitioner did not
contest the different spellings of her first name. For purposes of this opinion, this
Court takes notice that although petitioner’s legal name is now “Laura”, she also
spelled her name as either “Lora” or “Laora” on documentation relating to the 2008
tax year.
                                         -4-

[*4] Properties Associated With Petitioner4

      A certified grant deed recorded with the Los Angeles County Office of the

Registrar-Recorder/County Clerk documents the purchase of a residential property

at 422 Ellen Drive, West Covina, California (Ellen Drive property), on August 5,

2000, by petitioner under the name “Laora Ung”. On December 23, 2002,

petitioner retitled the property by executing a new grant deed from “Laora Ung” to

“Lora D. Ung”. A subsequent grant deed from “Lora D. Ung” to “Chamnam D.

Ung and Lora D. Ung” as joint tenants transferred ownership of the residential

property on March 26, 2004, to the two of them. Chamnam D. Ung is petitioner’s

brother.

      In 2006 the Ellen Drive property was sold by “Chamnam D. Ung and Lora D.

Ung” as joint tenants. Between 2002 and 2006, for purposes of filing her




      4
        At trial respondent’s witness Revenue Officer Huerta-Harris testified that she
ran a property records search for both the Ellen Drive property and 1704 Kam
Court, West Covina, California (Kam Court property). On May 15, 2012, Revenue
Officer Huerta-Harris conducted a search using petitioner’s first and last name. It is
unclear what name Revenue Officer Huerta-Harris used for the May 15, 2012,
search. On May 31, 2012, Revenue Officer Huerta-Harris went back to the county
recorder’s office under the instruction to search for property records on variations of
petitioner’s name.
                                         -5-

[*5] Federal income tax returns, petitioner listed the Ellen Drive property as her

contact and mailing address.5

      On October 30, 2007, a recorded corporation grant deed conveyed title to the

Kam Court property from Homecomings Financial LLC to “Chamnam D. Ung”. In

addition to her brother’s name, petitioner’s name appears, as “Lora Ung”, in the

“WHEN RECORDED MAIL TO:” address portion of the deed instructing the

Registrar-Recorder/County Clerk where to send the deed after it was recorded.

Petitioner’s brother’s name is the only name listed on the deed to the Kam Court

property.

Petitioner’s $256 Withdrawal From her Fidelity Investments Retirement Account

      Petitioner received a distribution of $256 from her Fidelity Investments

retirement account on March 31, 2008. The check issued by Fidelity Investments to

petitioner lists the Kam Court property as her mailing address.

Petitioner’s $20,000 Withdrawal From her Morgan Stanley Retirement Account

      On January 1, 2008, petitioner requested a withdrawal of $20,000 from her

Morgan Stanley retirement account. Petitioner listed the Kam Court property as


      5
        During the 2006 tax year, in addition to the Ellen Drive address, some of
petitioner’s employers and banks reported her address as 333 East Altern Street,
Monrovia, California. There is no evidence in the record that petitioner has ever
purchased or owned the property associated with this address.
                                         -6-

[*6] the address to which Morgan Stanley was to mail her distribution check. In

response to petitioner’s request, Morgan Stanley issued her a check for $20,000 on

January 25, 2008, reflecting the Kam Court property as her mailing address.

      On January 31, 2011, respondent sent to petitioner a notice of deficiency

determining a deficiency of $8,778 and a section 6662(a) accuracy-related penalty

of $1,654.6 According to respondent, the 10% additional tax arises on each separate

distribution because the $20,000 Morgan Stanley and $256 Fidelity Investments

withdrawals do not qualify for any of the exceptions to the 10% additional tax.7

Petitioner timely petitioned the Court for redetermination of the deficiency on May

2, 2011, and later amended her petition on June 20, 2011. Petitioner claims that her

Morgan Stanley distribution is exempt from the 10% additional tax because she

used the proceeds to pay for qualified acquisition costs



      6
        The stipulation of facts states that the notice of deficiency was mailed to
petitioner on April 14, 2010. However, the date on the notice of deficiency is
January 31, 2011. We believe the date in the stipulation of facts was a
typographical error on respondent’s part and that January 31, 2011, is the date that
respondent mailed the notice of deficiency to petitioner. Petitioner received the
notice of deficiency within the applicable three-year period of limitations. See sec.
6501(a).
      7
        The retirement plan distribution is premature because petitioner had not
attained the age of 59½ at the time of the distribution and would need to qualify
under an exception in order to avoid the otherwise automatic 10% additional tax.
See sec. 72(t)(1) and (2).
                                          -7-

[*7] of a first-time home purchase, which qualifies as an exception to the section

72(t) 10% additional tax pursuant to section 72(t)(2)(F). Petitioner makes no

argument with respect to her Fidelity Investments distribution.

                                       OPINION

I.    Burden of Proof

      The Commissioner’s determination of a taxpayer’s liability for an income tax

deficiency is generally presumed correct, and the taxpayer bears the burden of

proving that the determination is improper. See Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933). However, pursuant to section 7491(a)(1), the burden of

proof as to a factual issue that affects the taxpayer’s tax liability may be shifted to

the Commissioner. This occurs where the “taxpayer introduces credible evidence

with respect to * * * [that] factual issue” and the taxpayer has, inter alia, complied

with substantiation requirements pursuant to the Code, “maintained all records

required under this title and has cooperated with reasonable requests by the

Secretary for witnesses, information, documents, meetings, and interviews”. Sec.

7491(a)(1), (2)(B). Petitioner did not contend that the burden should shift, and she

provided little in the way of records to support her position. Accordingly, the

burden of proof remains on petitioner.
                                          -8-

[*8] II.     Ten Percent Additional Tax on Early Distributions From a Retirement
             Account

       A.    Section 72(t)

       To discourage individuals from taking premature distributions from retirement

plans Congress enacted section 72(t), imposing an additional tax of “10% of the

portion of such amount which is includible in gross income.” Sec. 72(t)(1); see also

Dwyer v. Commissioner, 106 T.C. 337, 340 (1996); S. Rept. No. 93-383, at 134

(1974), 1974-3 C.B. (Supp.) 80, 213 (stating that “[p]remature distributions

frustrate the intention of saving for retirement, and the committee bill, to prevent this

from happening, imposes a penalty tax” of 10%). Section 4974(c) describes the

various types of retirement accounts and plans whose distributions are subject to the

10% additional tax of section 72(t)(1), including individual retirement accounts

(IRAs) described in section 408(a). Petitioner’s Morgan Stanley and Fidelity

Investments accounts are IRAs described in section 408(a).

       Congress enacted section 72(t)(2) to grant relief in certain circumstances from

the 10% additional tax. Examples include premature distributions made as a result

of the death of the taxpayer, sec. 72(t)(2)(A)(ii); because of the taxpayer’s
                                          -9-

[*9] being disabled, sec. 72(t)(2)(A)(iii); and to pay health insurance premiums for

the taxpayer during certain periods of unemployment, sec. 72(t)(2)(D).

      In 1997, as part of the Taxpayer Relief Act of 1997, Pub. L. No. 105-34,

secs. 203 and 303, 111 Stat. at 809, 829, Congress enacted two more exceptions to

the 10% additional tax: premature distributions for qualified education expenses,

sec. 72(t)(2)(E), and, pertinent to this case, premature distributions for first-time

homebuyers, sec. 72(t)(2)(F). With respect to first-time home purchases, Congress

capped the exemption at a lifetime distribution limit of $10,000. Sec. 72(t)(8)(B).

As a result, the total potential lifetime tax savings under this provision is $1,000

(10% of $10,000).

      B.     The First-Time Home Purchase Exception

      A qualified first-time home purchase distribution is a distribution from an IRA

in an amount not to exceed $10,000 that is used within 120 days of its receipt to pay

qualified acquisition costs with respect to a principal residence of a first-time

homebuyer. Sec. 72(t)(2)(F), (8)(A) and (B). A first-time homebuyer is an

individual who has not had a present ownership interest in a principal residence, as

defined in section 121, during the two-year period ending on the date of acquisition

of another principal residence. Sec. 72(t)(8)(D)(i) and (ii). The date of acquisition

is the date on which a binding contract to acquire the principal
                                        - 10 -

[*10] residence is entered into or when construction or reconstruction is

commenced. Sec. 72(t)(8)(D)(iii). Qualified acquisition costs are the costs of

acquiring, constructing, or reconstructing a residence and include any usual or

reasonable settlement, financing, or other closing costs. Sec. 72(t)(8)(C).

      C.     The $20,000 Distribution From Morgan Stanley

      Petitioner contends that her withdrawal of $20,000 from her Morgan Stanley

IRA qualifies for the first-time home purchase exception because she used the

money towards the downpayment for the purchase of the Kam Court property.8

Respondent makes three arguments with respect to petitioner’s claim. First,

petitioner does not own the Kam Court property because her name is not on the

deed. Second, even if petitioner’s name was on the Kam Court property deed, she

is not a first-time homebuyer because she had prior ownership within two years of

the Ellen Drive property. Third, again assuming arguendo that petitioner owned the

Kam Court property, she did not use the $20,000 distribution for qualified

acquisition costs incurred in the year this property was purchased, which was 2007.




      8
       Only $10,000 from the actual distribution would be exempt. See sec.
72(t)(8)(B)(i).
                                           - 11 -

[*11] Petitioner stated that she owned the Kam Court property because she made

the offer to purchase it and withdrew the $20,000 from her Morgan Stanley

retirement account to apply towards the downpayment. Title to real estate is

governed by the laws of the place where it is situated. See Montgomery v. Samory,

99 U.S. 482, 483 (1878). Under California law, a deed is a written instrument

conveying or transferring the title to real property; it is an executed conveyance and

operates as a present transfer of the real property. Estate of Stephens v. Williams,

49 P.3d 1093, 1096 (Cal. 2002). “[I]t is clear that if there is only one owner of

record of a legal estate or title, he is the sole owner thereof even if the ownership is

only of the naked legal estate or title. * * * [I]t is plain that under the statute * * * [,

Cal. Civ. Code sec. 683, the legal title owner] may convey the legal title to himself

and another as he is the sole owner of what he conveys, i.e. the legal title.”

Lowenthal v. Kuntz, 231 P.2d 62, 64 (Cal. App. 2d 1951). Petitioner is not the

legal title owner and has failed to prove that she is an equitable title owner.

       The Kam Court property deed lists only petitioner’s brother as the owner.

Petitioner submitted an incomplete copy of the residential purchase agreement for

the Kam Court property that does not provide a sufficient basis upon which this

Court may determine the purchaser of the property. An addendum to the
                                         - 12 -

[*12] residential purchase agreement, however, lists the buyer of the Kam Court

property as “Chamnam Ung” and not petitioner. Petitioner’s brother also secured

the loan in order to purchase the Kam Court property. Petitioner did not execute

any agreements with her brother with respect to the Kam Court property.

      At trial petitioner submitted home warranty fee bills for plumbing repairs,

invoices from Home Depot, and receipts for payments to a contractor to prove that

she paid these expenses since she was the Kam Court homeowner. Absent legal

documentation that confers title on petitioner, payments for home repairs are not

“acquiring, constructing or reconstructing” costs within the meaning of section

72(t)(8)(C) and do not, without substantially more, constitute or establish either

legal or equitable homeownership. Cal. Civ. Code sec. 1091 (West 2007) (“An

estate in real property * * * can be transferred only by operation of law, or by an

instrument in writing.”). On the basis of the record, we find that petitioner did not

hold an ownership interest in the Kam Court property. Because we find that

petitioner had no ownership interest in the Kam Court property, we need not

address whether the Morgan Stanley distribution qualifies under the first-time
                                        - 13 -

[*13] home purchase exception or whether the $20,000 distribution was used for

qualified acquisition costs.9

       D.    The $256 Distribution From Fidelity Investments

       At trial petitioner produced no evidence that she qualified for any exception

from the early withdrawal penalty. In fact, petitioner stated that she did not object

to the imposition of the 10% additional tax with respect to her Fidelity Investments

withdrawal. Upon the record before us and absent evidence to the contrary, we

conclude that the $256 distribution petitioner received from Fidelity Investments is

subject to the 10% additional tax.

III.   Section 6662(a) Accuracy-Related Penalty

       Section 6662(a) and (b)(2) imposes a penalty of 20% on the portion of an

underpayment of tax attributable to, among other things, a substantial

understatement of income tax. An understatement of income tax is substantial

within the meaning of section 6662(b)(2) if, in the case of individuals as relevant

here, the understatement exceeds the greater of 10% of the tax required to be shown

on the return or $5,000. See sec. 6662(d); sec. 1.6662-4(b), Income Tax


       9
        Even if we did find that she held an ownership interest in the Kam Court
property, petitioner’s prior ownership in the Ellen Drive property within two years
of the Kam Court purchase disqualifies her as a first-time homebuyer pursuant to
sec. 72(t)(8)(D)(i).
                                          - 14 -

[*14] Regs. Respondent bears the burden of production with respect to the

imposition of the penalty, see sec. 7491(c), and that has been satisfied because the

understatement of income tax exceeds both 10% of the tax required to be shown on

the tax return and $5,000, see secs. 6211, 6662(d)(2), 6664(a). It is petitioner’s

burden to establish that the imposition of the penalty is not appropriate because,

inter alia, of a defense such as reasonable cause under section 6664(c). See Higbee

v. Commissioner, 116 T.C. 438, 447 (2001).

        Section 6664(c)(1) provides an exception to the imposition of the accuracy-

related penalty if the taxpayer establishes that there was reasonable cause for, and

the taxpayer acted in good faith with respect to, the underpayment. Sec. 1.6664-

4(a), Income Tax Regs. The determination of whether the taxpayer acted with

reasonable cause and in good faith “is made on a case-by-case basis, taking into

account all pertinent facts and circumstances.” Sec. 1.6664-4(b)(1), Income Tax

Regs.

        Petitioner worked in several different financial records positions. Petitioner

had her 2008 tax return prepared by Pedro Aguilar of P.A. Mortgage, Inc., using

records and information given to him. Petitioner testified that she did not provide

Mr. Aguilar with the 2008 Forms 1099-MISC, Miscellaneous Income, issued by

Morgan Stanley and Fidelity Investments. To avoid liability for a section 6662(a)
                                         - 15 -

[*15] penalty on the grounds of reliance on a tax professional, a taxpayer must meet

the following three requirements: “(1) The adviser was a competent professional

who had sufficient expertise to justify reliance, (2) the taxpayer provided necessary

and accurate information to the adviser, and (3) the taxpayer actually relied in good

faith on the adviser’s judgment.” Neonatology Assocs., P.A. v. Commissioner, 115

T.C. 43, 99 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002).

      Petitioner did not review her 2008 tax return before it was filed with

respondent and testified that she should have reviewed her tax return before she

signed anything. Petitioner candidly testified that it was irresponsible of her to not

provide Mr. Aguilar with all of the forms and documents, including all Forms W-2,

Wage and Tax Statement, and Forms 1099-MISC that related to the 2008 tax year.

Petitioner failed to satisfy the requirements of Neonatology Assocs. to establish

reasonable cause or that she acted in good faith with respect to any portion of the

underpayment of tax or that any portion of the underpayment is due to reasonable

cause. Petitioner is liable for the section 6662(a) accuracy-related penalty for 2008.

      The Court has considered all of petitioner’s contentions, arguments, requests,

and statements. To the extent not discussed herein, we conclude that they are

meritless, moot, or irrelevant.
                                  - 16 -

[*16] To reflect the foregoing,


                                           Decision will be entered for

                                  respondent.
