Tommy Dale & Alma R. Carder v. Commissioner, T.C. Summary Opinion 2008-82

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U.S. Tax Court

Tommy Dale & Alma R. Carder v. Commissioner

T.C. Summary Opinion 2008-82 · Docket 7422-07S · Decided Jul 15, 2008 · Juan F. Vasquez · T.C. Summary Opinion

T .C . Summary Opinion 2008-8 2

UNITED STATES TAX COUR T

TOMMY DALE CARDER AND ALMA R . CARDER, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 7422-07S . ;Filed July 15, 2008 .

Tommy Dale Carder and Alma R . Carder, pro sese .

Daniel N . Price , for respondent .

VASQU .EZ, Judge : This case was heard pursuant to th e provisions of section 74631 of the Internal Revenue Code in effect'when the petition was filed . . Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court , 1 Unless otherwise indicated, 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 an d Procedure .

9 1 and this opinion shall not be treated as precedent for any other case . The issue for decision is whether petitioners are liable for the 10-percent additional tax pursuant to section 72(t)(1 )

for-2004 .

Backgroun d

Some of the facts have been stipulated and are so found . 0 ;

The stipulation of facts and the attached exhibits are incorporated herein by this reference . At the time they filed i t the petition, petitioners resided in Texas .

Alma R . Carder (Mrs . Carder) invested in a qualified retirement plan with the Teacher Retirement System of Texas j (retirement plan) . In 2004 Mrs . Carder withdrew her balance from the retirement plan (the . distribution) . At the time'of the distribution, Mrs . Carder was 51 years old and Tommy Dale Carder (Mr . Carder) was 45 years old .

Mrs . Carder received a Form 1099-R, Distributions From

Pensions, Annuities,IRetirement or Profit-Sharing Plans, IRAs , Insurance Contracts,jetc ., for 2004 reflecting the distribution . Petitioners reportedlthe distribution, but not any additional tax due on the distribution, on their 2004 Federal income tax return . During 2004, Mr .1 Carder .was on active duty in the U .S . Army . During this time he received orders to move to Hawaii, an d petitioners promptlyjmoved from Texas to Hawaii . During 2004, petitioners used thedistribution to pay their unreimbursed

Footnotes

¹⁴ moving costs and their unreimbursed living costs (until they wer e housed permanently) associated with relocating to Hawaii . Discussion t Petitioners have neither claimed nor shown that they satisfied the requirements of section17491(a) . Accordingly, petitioners bear the burden of proof .2I See Rule 142(a ) Section 72(t) provides for a 10-percent additional tax on early distributions from a qualified retirement plan . Mrs . . Carder's retirement plan was a qualified retirement plan . The 10-percent additional tax does not apply to certain distributions . See sec . 72(t)(2) Petitioners concede that they do not fit within a statutory exception ; however, they contend that they should be excepted from the X10-percent additional ta x on account of the financial hardship . imposed by Mr . Carder' s military service and related relocation . Although we are sympathetic to petitioners' plight, none of the exceptions set forth in section 72(t)(2) apply in this case . Accordingly, respondent's determination is sustained . To reflect the foregoing, for Decision will be entere d respondent . 2 Regardless of whether the sec . {72(t) additional tax is an "additional amount" for which respondent would have the burden of production pursuant to sec . 7491(c), respondent has met tha t burden . See Milner v . Commissioner , T .C . Memo . 2004-111 n .2 .

Sections addressed

I.R.C. § 72 Annuities; certain proceeds of endowment and life…
(t) (t)(2)