T.C. Memo. 2010-146
UNITED STATES TAX COURT
PEGGY ANN SEARS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12454-08. Filed July 6, 2010.
Peggy Ann Sears, pro se.
John W. Strate, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: Respondent determined a $6,093.70 deficiency
in petitioner’s 2006 Federal income tax. Petitioner filed a
timely petition contesting respondent’s determination. The sole
issue for decision is whether distributions from petitioner’s
individual retirement accounts (IRAs) qualify for the exception
from the 10-percent additional tax on early distributions under
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section 72(t)(2)(A)(ii)1 as distributions to a beneficiary after
the death of an employee. We hold that the distributions are
subject to the additional tax.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulations are incorporated herein by this reference.
Petitioner resided in California when she filed her petition.
Petitioner’s husband, John H. Sears (Mr. Sears), died on
August 28, 1998. Before his death he maintained an IRA at Morgan
Stanley. Mr. Sears’ IRA account number ended in 7189 (account
No. 7189). Petitioner was the primary beneficiary of account No.
7189.
For at least part of 1999 petitioner had an IRA rollover
account at Morgan Stanley with an account number ending in 9853
(account No. 9853). As of the end of February 1999, account No.
9853 had a zero balance. On March 2, 1999, $30 was deposited in
account No. 9853, and Morgan Stanley applied it as a custody fee.
On March 24, 1999, Morgan Stanley transferred securities valued
at $442,863.87 from account No. 7189 to account No. 9853 (March
1999 transfer). As of March 31, 1999, account No. 7189 had
assets with a total value of $311,674.62.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) for the year at issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
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On April 26, 2002, petitioner designated two primary
beneficiaries for account Nos. 9853 and 7189. To do so, she
signed a Morgan Stanley Traditional IRA Amendment Agreement
(amendment agreement) with respect to each account.2
As of 2005 petitioner maintained an account at Morgan
Stanley ending with 9860 (account No. 9860), which was a living
trust account. On May 24, 2005, petitioner signed two “IRA
Distribution Request Form Periodic/on Demand Payment Request”
forms (distribution request forms) directing on-demand
distributions from account No. 7189 to account No. 9860 in
variable amounts to be determined by petitioner for each
payment.3 On June 13, 2005, petitioner signed a distribution
request form directing monthly distributions of $1,370 from
account No. 9853 and requesting that the distributions be
credited to account No. 9860. In September 2005 petitioner made
her last withdrawal from account No. 7189 in the amount of
$338.03, thereby depleting the funds in that account. Besides
the March 1999 transfer, between 1999 and September 2005
2
The parties’ stipulation 18 states that Exhibit 14-J is a
copy of the amendment agreement for account No. 9853. Because
the exhibit is a copy of the amendment agreement with respect to
account No. 7189, we treat it as such.
3
The parties’ stipulation 19 states that one of the
distribution request forms directed a gross distribution of
$5,000. Because the relevant exhibit indicates that petitioner
directed variable distributions in amounts to be determined by
her for each payment, we ignore the statement in stipulation 19
insofar as it is inconsistent with the terms of the exhibit.
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petitioner withdrew $443,230.92 from account No. 7189.4 On May
31, 2006, petitioner signed a distribution request form with
respect to account No. 9853 requesting distributions in amounts
to be determined by her for each payment and directing Morgan
Stanley to deposit the amounts in account No. 9860.
In addition to account Nos. 9853, 9860 (the living trust
account), and 7189 (Mr. Sears’ IRA account), petitioner also
maintained at Morgan Stanley IRA accounts with numbers ending in
8052 (account No. 8052) and 9052 (account No. 9052).5 On
September 29, 2006, petitioner signed a distribution request form
directing a distribution of $1,500 from account No. 8052 to
account No. 9860. Unlike the other distribution request forms,
the September 29, 2006, distribution request form indicated the
distribution was premature and no exception applied. During 2006
4
Besides the March 1999 transfer, petitioner’s withdrawals
from account No. 7189, were as follows:
Year Withdrawal amount
1999 $67,800.00
2000 96,675.00
2001 57,981.17
2002 57,248.65
2003 59,164.44
2004 68,233.89
2005 36,127.77
The amounts of the withdrawals include Federal and State tax
withholdings.
5
The record does not disclose how petitioner funded those
accounts.
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petitioner received distributions totaling $60,937 as follows:
$24,689 from account No. 8052, $18,809 from account No. 9853,6
and $17,439 from account No. 9052.7 In 2006 petitioner was not
yet 59-1/2 years old.
Petitioner filed her 2006 Form 1040, U.S. Individual Income
Tax Return, electronically.8 Petitioner’s accountant, Don Vance
(Mr. Vance), prepared petitioner’s 2006 return. Petitioner
reported $60,937 in distributions from her IRAs but did not
report the 10-percent additional tax pursuant to section 72(t)
for an early withdrawal from an IRA. Respondent adjusted
petitioner’s tax by adding 10 percent of the total distributions
on the ground that petitioner had not reached age 59-1/2 in 2006
6
The parties stipulated that the distribution of $18,809 was
from an account with a number ending in 3052 (account No. 3052).
Respondent explains on brief that Morgan Stanley uses three sets
of digits for account numbers. The last three-digit set
identifies the financial adviser handling the account.
Respondent also states that account No. 3052 is the same as
account No. 9853. Petitioner does not disagree with respondent’s
explanation. The jointly stipulated summary of accounts for
March 2009 also suggests that account No. 3052 is the same as
account No. 9853. Accordingly, we refer to account No. 3052 as
account No. 9853.
7
According to petitioner, she had been receiving
distributions from the IRAs since Mr. Sears’ death in 1998, but
respondent, Morgan Stanley, and petitioner’s accountant, Don
Vance, never identified issues with the distributions.
Respondent determined additional tax for 2006 only.
8
The record does not disclose whether petitioner filed the
2006 return timely.
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and no other exception to the additional tax under section 72(t)
applied.
OPINION
I. Petitioner’s Argument
During 2006 petitioner received premature distributions from
three IRA accounts, Nos. 9853 ($18,809), 8052 ($24,689), and 9052
($17,439), that she owned and maintained at Morgan Stanley.
Although petitioner authorized the distributions, petitioner
appears to argue that the distributions should not be subject to
the additional tax under section 72(t) because the exception
under section 72(t)(2)(A)(ii) applies. As we understand
petitioner’s position, which petitioner never clearly explained,
petitioner is alleging in effect that the assets in account No.
9853 were transferred from her deceased husband’s IRA account No.
7189 to account No. 9853 in 1999 without her authorization and
that the 2006 distributions from account No. 9853 should have
been treated as distributions to her as the beneficiary of her
deceased husband’s IRA.9
9
Petitioner does not claim that the 2006 distributions from
her other IRA accounts, Nos. 8052 and 9052, came from assets
transferred from her deceased husband’s IRA by mistake. In fact,
there is no credible evidence that any assets from her deceased
husband’s IRA account No. 7189 were ever transferred to account
Nos. 8052 and 9052. Consequently, we interpret petitioner’s
argument for relief under sec. 72(t)(2)(A)(ii) as a request for
partial relief that relates only to the 2006 distributions from
her account No. 9853.
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Generally, the Commissioner’s determination in the notice of
deficiency is presumed correct, and the taxpayer bears the burden
of proving that the determination is erroneous. Rule 142(a);
Welch v. Helvering, 290 U.S. 111, 115 (1933). Petitioner does
not contend that section 7491(a) shifts the burden of proof to
respondent, nor does the record establish that petitioner
satisfies the requirements of section 7491(a)(2).
II. Burden of Proof and Production
Section 7491(c) provides that the Commissioner bears the
burden of production with respect to the liability of any
taxpayer for any penalty, addition to tax, or additional amount
imposed by the Code. To satisfy his burden of production under
section 7491(c), the Commissioner must produce evidence that it
is appropriate to impose the relevant penalty. Higbee v.
Commissioner, 116 T.C. 438, 446 (2001). However, section 7491(c)
does not require the Commissioner to introduce evidence regarding
reasonable cause. Id.
We do not need to address whether additional tax under
section 72(t) is an amount to which section 7491(c) applies.
Even if the burden of production with respect to the additional
tax is on respondent, respondent has met it by showing that the
distributions in 2006 were not from account No. 7189.
Consequently, petitioner has both the burden of producing
evidence to show that the 2006 distributions from account No.
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9853 are not subject to the additional tax under section 72(t)
and the burden of proving that respondent’s determination is
incorrect. See Rule 142(a)(1).
III. Analysis
Generally, amounts distributed from an IRA are includable in
gross income as provided in section 72. Sec. 408(d)(1). Section
72(t)(1) provides for a 10-percent additional tax on early
distributions from qualified retirement plans, unless the
distribution falls within a statutory exception. The relevant
exception is section 72(t)(2)(A)(ii), which provides that
distributions “made to a beneficiary (or to the estate of the
employee) on or after the death of the employee” are not subject
to the 10-percent additional tax.
We have previously held that the beneficiary loses the
ability to claim the exception under section 72(t)(2)(A)(ii) if
the beneficiary rolls over the funds from the deceased spouse’s
IRA into his or her IRA and thereafter withdraws funds from the
IRA. See Gee v. Commissioner, 127 T.C. 1, 4-5 (2006). In Gee v.
Commissioner, supra at 4-5, we held that when a beneficiary rolls
over funds from the deceased spouse’s IRA, the funds become the
beneficiary’s own and any subsequent distributions are no longer
occasioned by the death of the spouse. Thus, such distributions
do not qualify for the section 72(t)(2)(A)(ii) exception. See
id.
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With respect to distributions from account No. 9853, the
record contains statements for account Nos. 7189 and 9853 for
March 1999. An entry dated March 24, 1999, in the statement for
account No. 7189 is titled “Securities Delivered -442,863.87”.
The March 1999 account statement for account No. 9853 shows that
on March 24, 1999, account No. 9853 received securities valued at
$442,863.87. Because securities worth $442,863.87 were
transferred on March 24, 1999, from account No. 7189 to account
No. 9853, i.e., from Mr. Sears’ IRA to petitioner’s IRA, the
funds became petitioner’s funds. See id. at 4. Accordingly, the
subsequent distributions of those funds were not occasioned by
the death of petitioner’s husband and were not made to her in her
capacity as beneficiary of his IRA. See id.
Petitioner testified she did not remember the March 1999
transfer and did not understand rollovers. She claimed she did
not understand how the stock market works or how to read account
statements. Instead, she trusted Mr. Vance and her adviser at
Morgan Stanley, and none of them “picked up on it.” She contends
that Morgan Stanley made a mistake,10 and “they were supposed to
be looking out for * * * [her] interest, which, of course, they
didn’t.” Petitioner claims that her financial consultant at
Morgan Stanley had authority over the IRAs and she would not have
10
We understand petitioner to refer to the March 1999
transfer as the relevant mistake.
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discussed the asset transfer with him because she did not
understand how the stock market worked. However, petitioner’s
financial consultant from Morgan Stanley did not testify at
trial, and because of the passage of time, the records that
Morgan Stanley produced at trial did not include relevant
transfer records and authorizations for the March 1999 transfer
of securities from account No. 7189 to account No. 9853.11
The parties do not rely on and we have not found any cases
discussing the application of the section 72(t)(2)(A)(ii)
exception as we interpreted it in Gee v. Commissioner, supra, in
cases of alleged trustee mistakes. On brief respondent
distinguishes the case at hand from cases involving trustee
mistakes in another context of IRA rollovers. In Wood v.
Commissioner, 93 T.C. 114, 115 (1989), the taxpayer received a
lump-sum distribution (consisting of a check and stock
certificates) from his retirement account and wanted to roll over
the distribution into an IRA rollover account. The taxpayer met
with an account executive at Merrill Lynch, signed the documents
to establish his rollover account, and delivered the check and
stock certificates to Merill Lynch, the trustee. Id. at 115-116.
The trustee records reflected the transfer of the distribution
check to the IRA within the 60-day period required by section
11
Despite respondent’s efforts at the Court’s direction,
Morgan Stanley was not able to find any such documents.
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402(a)(5)(C), as in effect for 1983.12 See Wood v. Commissioner,
supra at 116. However, Merrill Lynch mistakenly recorded the
stock certificates as having been transferred to another of the
taxpayer’s accounts. See id. at 116-117. Although the account
statement showed that the trustee had not deposited stock in the
IRA rollover account before the 60-day rollover period expired,
the taxpayer did not realize the rollover was untimely until the
Commissioner questioned him about the failure to report the lump-
sum distribution. Id. at 117-118.
In Wood v. Commissioner, supra at 120, we rejected the
Commissioner’s argument that the trustee’s records control
whether the stock was rolled over timely. We stated that a mere
bookkeeping error that failed to properly reflect the transaction
does not control the resolution of the case. Id. at 120-121
(“The substance of a transaction must be determined from the
facts surrounding the transactions rather than from bookkeeping
entries.”). Because the taxpayer took reasonable steps to
establish an IRA rollover account and timely transfer the
distribution, we concluded the taxpayer could claim the rollover
benefits when a trustee made a mistake in recording a
12
Generally, sec. 402(a) provides that the taxable portion
of a distribution from a qualified employees’ trust is taxable in
the year of receipt. Sec. 402(a)(5)(A) and (C), as in effect for
1983, provided for an exception from this rule if the
distribution was transferred to an eligible retirement plan
within 60 days following receipt of the distribution.
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transaction. Id. at 122. In subsequent cases we have pointed
out that the doctrine of substantial compliance and Wood v.
Commissioner, supra, apply only to procedural defects in
effecting a rollover and not to failures of a fundamental element
of the statutory requirements for an IRA rollover. See Schoof v.
Commissioner, 110 T.C. 1, 10-11 (1998); Rodoni v. Commissioner,
105 T.C. 29, 38-39 (1995); Anderson v. Commissioner, T.C. Memo.
2002-171.
Respondent points out that petitioner did nothing after 1999
to correct the allegedly mistaken March 1999 transfer. The
record supports respondent’s assertion. Petitioner testified
that she understood that the front page of the account statement
showed the account value and value change for the period. The
record establishes that at the end of February 1999 account No.
9853 had a zero balance, but at the end of March 1999 the total
asset value of account No. 9853 was $451,268.56. Even if
petitioner did not notice that account No. 7189 lost more than
half of its value because of the March 1999 transfer, at some
point between 1999 and 2006 petitioner should have noticed that
account No. 9853 no longer had a zero balance. Nevertheless, the
record contains no credible evidence to show that petitioner
inquired of Morgan Stanley whether a mistake had occurred and, if
so, that she asked Morgan Stanley to correct the allegedly
mistaken transfer.
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We do not need to decide whether the exception from the 10-
percent additional tax under section 72(t)(2)(A)(ii) applies when
the transfer from the deceased employee’s IRA account to the
beneficiary’s IRA resulted from a trustee’s advice or from a lack
thereof or from a mere bookkeeping error. Although the record
contains no evidence of petitioner’s authorization of the March
1999 transfer, on this record we are unable to conclude that the
March 1999 transfer of securities to account No. 9853 was the
result of a trustee or custodial mistake. Petitioner’s actions
after the March 1999 transfer suggest that she either authorized
the transfer or subsequently ratified it. In reaching our
conclusion we rely on the amendment agreements, which suggest
that even before 2005 petitioner understood or should have
understood that account Nos. 7189 and 9853 were different IRA
accounts. Petitioner signed the two amendment agreements on
separate forms on April 26, 2002, and designated the same two
persons as primary beneficiaries of each account. Because
petitioner signed the amendment agreements on the same day,
petitioner either understood or should have understood that
account Nos. 7189 and 9853 were distinct accounts.
In addition, petitioner knowingly withdrew funds from her
own IRAs. The record contains two distribution request forms
dated May 24, 2005, directing on-demand distributions from
account No. 7189 in variable amounts to be determined by
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petitioner for each payment and directing that the distributed
funds be credited to account No. 9860. Approximately 3 weeks
later, on June 13, 2005, petitioner signed a distribution request
form directing monthly distributions of $1,370 from account No.
9853 and directing that funds be credited to account No. 9860.
Even if a Morgan Stanley employee filled out the distribution
forms for petitioner to sign, the short time that elapsed between
the signing of the forms strongly suggests that petitioner knew
the $1,370 monthly distributions were from her own account and
not from account No. 7189.
In September 2005 account No. 7189 was depleted.13 Not
surprisingly, in 2006 petitioner’s distribution request forms
focused only on her own IRAs. On May 31, 2006, petitioner signed
a distribution request form with respect to account No. 9853
requesting distributions in amounts to be determined by
petitioner for each payment, and on September 29, 2006,
petitioner signed a distribution request form directing a $1,500
distribution from account No. 8052. The latter form indicated
that the distribution was premature and no exception applied.
Petitioner asserts that Morgan Stanley prepared three Forms
1099-R, Distributions From Pensions, Annuities, Retirement or
Profit-Sharing Plans, IRAs, Insurance Contracts, etc., for 2006
13
From 1999 through September 2005 petitioner withdrew
distributions totaling $443,230.92 from account No. 7189 (not
including the transfer of securities on Mar. 24, 1999).
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showing “Distribution Code(s)” as “4”.14 The Forms 1099-R,
however, are inconsistent with the petition, in which petitioner
contended that Morgan Stanley issued Forms 1099-R incorrectly
showing the distribution code as 1. The petition also states
that petitioner contacted Morgan Stanley to request corrected
Forms 1099-R showing code 4, but without result. Petitioner’s
position in the petition is consistent with the jointly
stipulated letter from a Morgan Stanley representative to Mr.
Vance dated August 4, 2008, which stated: “In 2005 and 2006
Peggy Ann Sears took distributions from account No. 7189, which
were all reported as premature distributions on the 1099R issued
to her and the IRS.” Because the distribution codes on the Forms
1099-R are inconsistent with other credible evidence in the
record, including Morgan Stanley’s records, and contradict
petitioner’s explanations in the petition, we do not give any
credence to the coding on the Forms 1099-R in reaching our
conclusion.15
14
The instructions to Form 1099-R for 2006 describe the
distribution code “4” as “Death” and distribution code “1” as
“Early distribution, no known exception”.
15
The Forms 1099-R for 2006 showing distribution code “1”
that petitioner states were issued are not part of the record,
and the Forms 1099-R with the distribution code “4” contained in
the record do not show that they are corrected forms. The record
does not explain at what point Morgan Stanley reissued these
forms.
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Petitioner does not contend that any other exception of
section 72(t)(2) applies, and she has not proven that
respondent’s determination is in error. On the basis of the
foregoing, we conclude that the premature 2006 distributions from
petitioner’s IRA accounts are subject to the 10-percent
additional tax.
We have considered the remaining arguments made by the
parties, and to the extent not discussed above, we conclude those
arguments are irrelevant, moot, or without merit.
To reflect the foregoing,
Decision will be entered for
respondent.