T.C. Summary Opinion 2011-138



                      UNITED STATES TAX COURT



                 ALLAN K. VETERE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18287-10S.             Filed December 19, 2011.



     Allan K. Vetere, pro se.

     Kimberly A. Kazda and Bryce Nakamura (student), for

respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2007, the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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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 $2,272.50 deficiency attributable to

a 10-percent additional tax for an early retirement account

distribution under section 72(t)(1).     We consider whether

petitioner comes under any of the exceptions, from the additional

tax, provided for in section 72(t)(2).

                            Background

     Petitioner, who resided in California at the time his

petition was filed, caused an individual retirement account (IRA)

distribution to be made to him early in 2007.     He received a Form

1099-R, Distributions From Pensions, Annuities, Retirement or

Profit-Sharing Plans, IRAs, Insurance Contracts, etc., from the

account trustee and reported the $22,725.96 distribution as

“wages” on his 2007 Form 1040, U.S. Individual Income Tax Return.

     Petitioner was unemployed for approximately 1 year before

the IRA distribution.   During 2007 he used most of the $22,725.96

distribution for basic living expenses.     During 2007 he used

$2,273 of the distribution for educational purposes to improve

his skills to enable him to find employment.     He also used $180

for chiropractor visits and $360 for dentist visits.
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       Respondent determined that petitioner was liable for the 10-

percent additional tax of $2,272.50 and that he was not eligible

for any of the section 72(t)(1) exceptions.

                             Discussion

       Section 72(t)(1) provides for a 10-percent additional tax

for “early” distributions from a “qualified retirement plan”.

Section 72(t)(2) provides exceptions from the additional tax

under certain specified circumstances.    For purposes of this

case, if a person is unemployed for a specified time before the

distribution, then the amounts of expenditures for health care

premiums and medical expenses may be exempt from the additional

tax.    See generally sec. 72(t)(2)(B), (D).   Additionally, certain

expenditures for education may be exempt from the additional tax.

See generally sec. 72(t)(2)(E).

       At trial respondent’s counsel agreed that if petitioner

substantiated medical and/or educational expenses, he would come

within the exception from the additional tax.    The evidence

petitioner presented at trial supports our holding that

petitioner is exempt from the section 72(t)(1) additional tax

with respect to $2,813 of the $22,275.96 early distribution.


                                          Decision will be entered

                                    under Rule 155.