Tommy Dale & Alma R. Carder, Petitioner

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 ,

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 .

; The stipulation of facts and the attached exhibits are incorporated herein by this reference . At the time they filed it 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 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, Decision will be entere d for respondent .