UNITED STATES TAX COURT
GREGORY SCOTT WEST, Petitioner v
.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2784-00S. Filed April 1, 2002.
Gregory Scott West, pro se.
Rachael J. Zepeda
, for respondent.
GOLDBERG, Special Trial Judge
: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in effect for the year in issue.
Respondent determined a deficiency in petitioner’s 1997
Federal income tax in the amount of $3,886.
The sole issue for decision is whether petitioner is liable for a 10-percent additional tax under section 72(t)(1) on a $38,855 distribution from an individual retirement account (IRA). Some of the facts have been stipulated and are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. At the time the petition was filed, petitioner resided in Phoenix, Arizona.
In 1995, petitioner was employed as a manager at Alamo
Rental Car in Nashville, Tennessee. Petitioner worked for Alamo for 12 years prior to March 1995, when he resigned due to failing health. At that time, petitioner moved back to Phoenix, Arizona, to be near his family. He did not consult with a medical doctor. Although petitioner’s illness was not confirmed until 1998, he was unable to work after March of 1995 as the symptoms of his illness increased. In 1998, petitioner confirmed, through an anonymous testing facility, that he has the human immunodeficiency virus (HIV) which has developed into the acquired immunodeficiency syndrome, or AIDS. Petitioner testified that he had symptoms in 1995, “and I knew what the problem was.” Petitioner also stated that “with HIV, you cannot start the--the longer you can wait to start medication the better, because you’re--the virus builds up resistance to the medication.” Petitioner was hospitalized in 1999 and has been on medical treatment since then.
Petitioner testified that he did not seek medical attention during 1996 through 1998 because he was attempting to secure employment on a part-time basis and health insurance with no “annual caps”. He further testified that “unfortunately, if you keep it anonymous, you have greater chances of getting employment, and you know, insurance.” Petitioner began working for American Express in mid-1998. Petitioner works on a parttime basis, approximately 32 hours per week. American Express offers health insurance with no “annual caps” and a salary continuance program under the Family and Medical Leave Act of 1993, Pub. L. 103-3, 107 Stat. 6. Petitioner testified that had he found a company that would have provided the insurance he was seeking and the part-time schedule, he would have been able to work in 1997.
Prior to the year in issue petitioner individually owned an
IRA account. During 1997, petitioner withdrew $38,855 from his IRA account. Petitioner did not roll over the IRA amounts into another qualified employee retirement plan or individual retirement plan. The amount withdrawn was reported on petitioner’s 1997 Federal income tax return. Although the amount of the distribution was reported on the return, petitioner did not compute the 10-percent additional tax due for premature distribution. Petitioner, who was born on March 7, 1957, was 40 Further, at trial petitioner testified that had he found a company, like American Express, that offered him a part-time work schedule and medical insurance with no “annual caps”, then he would have worked in 1997. Under the definition of disability found in section 72(m), petitioner is not deemed disabled if he was able to “engage in any substantial gainful activity” during the year in issue. “Substantial gainful activity” refers to the activity or a comparable activity in which the individual customarily engaged prior to the disability. Sec. 1.72-17(f)(1), Income Tax Regs. By petitioner’s own testimony, he was able to work in 1997 at an activity comparable to the one in which he customarily engaged, and thus he was not disabled as defined in section 72(m)(7). See also Dwyer v. Commissioner , 106 T.C. 337 (1996); Fohrmeister v. Commissioner , T.C. Memo. 1997-159; Brown v. Commissioner , T.C. Memo. 1996-421.
Petitioner testified that he contacted the Internal Revenue
Service (IRS) with respect to the 10-percent additional tax and was informed by an IRS agent that he was not subject to the 10percent additional tax. This Court has previously held that the authoritative sources of Federal tax law are statutes, regulations, and judicial case law and not informal IRS sources. Zimmerman v. Commissioner , 71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d 1294 (2d Cir. 1979); Green v. Commissioner , 59 T.C. 456, 458 (1972). Additionally, in order to ensure uniform enforcement of the tax law, the Commissioner must follow authoritative sources of Federal tax law and may correct mistakes of law made by IRS agents or employees. Dixon v. United States , 381 U.S. 68, 72 (1965); Massaglia v. Commissioner , 286 F.2d 258, 262 (10th Cir. 1961), affg. 33 T.C. 379 (1959). While it is unfortunate that petitioner may have received unhelpful or incorrect tax advice from an IRS employee, that advice does not have the force and effect of law.
Although we are very sympathetic to petitioner’s medical situation, he has failed to show that he was disabled, as defined in section 72(m)(7), during the year in issue. Since petitioner fails to qualify for any of the statutory exceptions under section 72(t)(2), we hold that he is liable for the 10-percent additional tax on distributions from a qualified retirement plan for 1997 as provided in section 72(t)(1). Respondent is sustained on this issue.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered for respondent .