VEGA v. COMMISSIONER

2002 T.C. Summary Opinion 14, 2002 Tax Ct. Summary LEXIS 16
United States Tax Court·Decided February 15, 2002·No. No. 1434-01S·Unpublished

Opinion

ARMANDO VEGA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
VEGA v. COMMISSIONER
No. 1434-01S
United States Tax Court
T.C. Summary Opinion 2002-14; 2002 Tax Ct. Summary LEXIS 16;
February 15, 2002, Filed

*16 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.

Armando Vega, pro se.
Susan Smith Canavello, for respondent.
Powell, Carleton D.

Powell, Carleton D.

POWELL, Special Trial Judge: This case was heard pursuant to section 7463 of the Internal Revenue Code in effect at the time the petition was filed. 1 The decision to be entered in this case is not reviewable by any other court, and this opinion should not be cited as authority.

Respondent determined a deficiency in petitioner's 1998 Federal income tax and an addition to tax under section 6651(a)(1) of $ 4,398 and $ 660, respectively. The issues are: (1) Whether a distribution from a retirement plan of $ 27,389 is includable in petitioner's gross income for the*17 1998 taxable year; (2) whether petitioner failed to report interest income of $ 117 for 1998; and (3) whether petitioner is liable for the addition to tax under section 6651(a)(1) for the 1998 taxable year. 2 Petitioner resided in Baton Rouge, Louisiana, at the time the petition was filed.

The facts may be summarized as follows. In October 1998, petitioner received a distribution from a retirement plan 3 of $ 30,389.94. 4 Some time prior to this, petitioner had opened a individual retirement account (IRA) and a cash management account (CMA) with Merrill Lynch. The distribution*18 from the retirement plan was deposited into the CMA. Petitioner believed that he had instructed his broker at Merrill Lynch to put the distribution into the IRA. A statement from Merrill Lynch for the period ending October 31, 1998, however, clearly shows that the distribution had been deposited into the CMA.

During 1998, petitioner had a savings account with Hibernia National Bank. That account generated interest income of $ 117 that petitioner did not withdraw during the year.

Petitioner obtained extensions of time within which to file his 1998 Federal income tax return to October 15, 1999. He did not file his 1998 return until October 19, 1999. Petitioner did not report income from the distribution from*19 the retirement plan or the $ 117 interest income from Hibernia National Bank. Respondent determined that $ 27,389 of the retirement plan distribution and the $ 117 interest income are includable in gross income. Respondent also imposed an addition to tax under section 6651(a)(1) for not timely filing the 1998 tax return.

           Discussion 5

Retirement Plan Distribution

The taxable portion of a distribution from a retirement plan under section 401(k) is generally taxable in the year of receipt. See sec. 402(a)(1). Section 402(a)(5)(A) and (C), however, provides:

     (A) General rule. -- If --

        (i) any portion of the balance to the credit of an

     employee in a qualified trust is paid to him,

*20         (ii) the employee transfers any portion of the

     property he receives in such distribution to an eligible

     retirement plan, and

        (iii) in the case of a distribution of property other

     than money, the amount so transferred consists of the

     property distributed,

   then such distribution (to the extent so transferred) shall not

   be includible in gross income for the taxable year in which

   paid.

           *   *   *   *   *   *   *

     (C) Transfer must be made within 60 days of receipt. --

   Subparagraph (A) shall not apply to any transfer of a

   distribution made after the 60th day following the day on which

   the employee received the property distributed.

The distribution from the retirement plan was received by petitioner on or about October 19, 1998. Petitioner did not deposit the funds into an IRA, rather the funds were deposited into a CMA. Accordingly, the exemption of the distribution from gross income contained in section 402(a)(5)(A) does not apply.

Petitio

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