UNITED STATES TAX COURT

T.C. Memo. 2011-139

UNITED STATES TAX COURT

RAYMOND H. AND ANA A. RYAN, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No.

11526-09.

Filed June 21,

2011.

Gerald Brantley and Samuel Eastman, for petitioners.

Jeffrey D. Heiderscheit, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MARVEL, Judge:

Respondent determined a deficiency of $979

in petitioners' Federal income tax for 2006.

The deficiency

results from respondent's determination to impose the 10-percent

additional tax under section 72(t)1 on the early deemed

1

IUnless otherwise indicated, all section references are to

(continued. . . )

- 2 distribution petitioner Raymond H. Ryan allegedly received from

his qualified retirement plan in 2006.

issues for decision are:

After concessions,2 the

(1) Whether petitioners properly

included in income the balance of a loan from a Federal

Employees' Thrift Savings Plan (TSP) account as a deemed

distribution under section 72(p); and (2) if so, whether

petitioners are liable for the 10-percent additional tax on early

distributions under section 72(t).

FINDINGS OF FACT

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

The stipulations are incorporated herein by this reference.

Petitioners Raymond H. and Ana A. Ryan resided in Texas when they

filed their petition.

Petitioner Raymond H. Ryan (petitioner)

worked as an aerospace engineer with the Department of the Air

Force (Air Force) for 17 years.

In 2003, at the recommendation of a coworker, petitioner

applied for a $50,000 general purpose loan from his TSP account.

On the loan application petitioner requested a repayment term of

4 years with a biweekly repayment schedule.

On February 19,

(...continued)

the Internal Revenue Code, as amended and in effect for the

taxable year at issue, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

Some monetary amounts

have been rounded to the nearest dollar.

2At trial petitioner Ana A. Ryan conceded that she is not

entitled to relief under sec. 6015.

- 3 2003, the TSP Service Office approved petitioner's loan

application.

Petitioner received the $50,000 as a lump-sum loan

and used the funds to pay off debt and purchase a parcel of land.

I.

Removal From Service and Subsequent Appeals

In September 2005 the Air Force reassigned petitioner from

Texas to Tinker Air Force Base (Tinker)

in Oklahoma.3

Petitioner

requested that the Air Force delay :the reassignment because of

his medical condition.

Petitioner's supervisor, Mark Kaestner.

(Mr. Kaestner), denied the request because -suitable treatment for

petitioner's medical condition was available near Tinker.

Mr.

Kaestner advised petitioner that he should request "use or lose"

leave or sick leave.

After the initial denial petitioner contacted his third-line

supervisor.

Petitioner submitted additional medical information

indicating that he could not perform all of the duties of the

position at Tinker.

The Air Force denied petitioner's second

request on November 28, 2005.. Mr. Kaestner again advised

petitioner of the right to use various types of leave, and he

informed petitioner in writing that he would be placed in absent

30n Apr. 20, 2010, the U.S. Coûrt of Appeals for the Fifth

Circuit issued an opinion affirming a decision of the U.S.

District Court for the Western District of Texas.

Ryan v. Dept.

of the Air Force,

375 Fed. Appx. 371

(5th Cir.

2010).

Pursuant

to rule 201 of the Federal Rules of Evidence, we take judicial

notice of the U.S. Court of Appeals for the Fifth Circuit's

opinion and rely on it, in part, for the 'history of petitioner's

litigation with the Air Force.

- 4 without leave (AWOL)

status if he failed to report for duty or

use available leave.

On November 23, 2005, petitioner emailed Mr. Kaestner to

request 4 months of sick leave.

Petitioner subsequently emailed

Mr. Kaestner to request use or lose leave for December 12-30,

2005.

Mr. Kaestner replied that the request for sick leave had

been approved but that the request for use or lose leave remained

under consideration.

Despite his earlier letter approving petitioner's sick leave

request, Mr. Kaestner informed petitioner on December 22, 2005,

that:

(1) Beginning January 3, 2006, the Air Force would not

approve any further leave, and (2) if petitioner failed to report

to Tinker on January 3, the Air Force would place petitioner in

AWOL status.

Petitioner did not report to work.

On March 21, 2006, the Air Force removed petitioner from

employment allegedly for excessive absence.

the removal on two grounds:

Petitioner appealed

(1) Disability discrimination; and

(2) retaliatory termination because of his whistleblowing

activities (collectively, affirmative defenses).

In an initial

decision, the administrative law judge (ALJ) concluded that

petitioner did not prove either of his affirmative defenses and

upheld the Air Force's removal action.

The ALJ stated that if an

agency approves leave for unscheduled absences, the agency

generally cannot remove the employee because of those absences.

- 5 However, under Cook v. Dept. of the Army,

18 M.S.P.R.

610- (1984),

an agency -may remove an employee if the employee made excessive

use of unscheduled leave without pay (LWOP).'

The ALJ concluded

that the Cook exception applied and upheld petitioner's removal.

Petitioner appealed the ALJ's initial decision, arguing that

the ALJ made procedural errors and was biased and that petitioner

proved sufficiently the whistleblower and discrimination defenses.

On October 4, 2007, the Merit Systems Protection Board

(MSPB) concluded that although petitioner fai-led to prove -the

affirmative defenses, the ALJ had erroneously ruled in favor of

the Air Force.

(2007).

Ryan v. Dept. of the Air Force, 2007 M.S.P.B. 5240

The MSPB concluded that -the Cook exception did not apply

to petitioner's removal because the Air Force did not demonstrate

that petitioner was on LWOP.

The MSPB ordered that:

(1) -The Air

Force restore petiti'oner to-employment effective March 21, 2006,

no later than 20 days' after entry of the MSPB' order, and (2) the

Air Force providen "the appropriate amount of back pay, interest

on back pay, and other benefits * * * no later than 60 calendar

days after the date of this decision."4

4The MSPB informed petitioner that he had 30 days to file a

civil action against the Air Force on the discrimination claim.

Ryan v. Dept. of the Air Force, No. 5:08-CV-927XR (W.D. Tex.

2009), affd. 375 Fed. Appx. 371 (5th Cir. 2010).

Petitioner

failed to timely file the action appealing the MSPB's Oct. 4,

2007, denial of his discrimination claim.

Id.

- 6 Subsequently, the Air Force canceled petitioner's removal

and directed him to report for work at Tinker on October 15,

2007.

However, petitioner did not report for work at Tinker,

citing his medical condition.

Therefore, the Air Force kept

petitioner in AWOL status from March 21, 2006, onward.

The Air

Force did not provide petitioner with backpay or reinstate his

TSP loan during this time.

Because the Air Force failed to take the actions required by

the MSPB, petitioner filed an initial petition for enforcement of

the MSPB's order on December 4, 2007.

On April 3, 2008, the ALJ

denied the petition for enforcement.

The ALJ found that the Air

Force timely canceled petitioner's removal and properly

reinstated him when the Air Force sent a letter directing him to

report for work at Tinker on October 15, 2007.

In addition, the

ALJ found that the Air Force properly denied backpay to

petitioner for the period from March 21, 2006, through October

15, 2007.

An employee is entitled to a backpay award if the

employee lost pay as a result of unjustified or unwarranted

employer action.

The Air Force placed petitioner in nonpay

status on January 3, 2006, because he was AWOL, not because he

was removed.

When the Air Force reinstated petitioner per the

MSPB order, the Air Force placed petitioner in AWOL status

beginning March 21, 2006.

Because petitioner was in AWOL status

- 7 and because he was not ready, willing, and able to work, the ALJ

concluded that the Air Force properly denied petitioner backpay.

On January 11, 2008,.the Air Force sent petitioner a letter

proposing removal from employment because of his failure to

report for duty at Tinker on October 15, 2007.

The Air Force

removed petitioner from Federal employment in February 2008.

After receiving the ALJ's decision, petitioner filed a

petition for review with the MSPB on May 1, 2008.

In its opinion

of September 19, 2008, the MSPB concluded that petitioner did not

present any new evidence and that' the ALJ properly concluded that

petitioner was not entitled to backpay.

The MSPB decision

notified petitioner that he could appeal the decision by filing a

complaint with the U.S. Court of Appeals for the Federal Circuit.5

On November 17, 2008, petitioner filed-a complaint against

the Air Force with the U.S. District Court for the Western

SIn addition, the MSPB noted that petitioner improperly

raised his whistleblower retaliation claim in the petition for

review of May 1, 2008. The MSPB advised petitioner to seek

corrective action from the Office of Special Counsel before

filing a separate appeal with the MSPB.

Petitioner filed an

individual right of action under the Whistleblower Protection Act

on Oct. 20,

235 (2009).

2008.

Ryan v. Dept. of the Air Force, 2009 M.S.P.B.

On May 15, 2009, the ALJ denied petitioner's claim.

Id.

In the appeal, the MSPB determined that petitioner could not

challenge whether his removal from service was in retaliation for

whistleblowing but that petitioner could challenge whether his

placement on LWOP status and the sick leave denials constituted

retaliation.

Id. The MSPB therefore vacated the initial

decision and remanded the appeal to. the ALJ.

Id.

- 8 -

District of Texas.

In the complaint petitioner alleged that the

Air Force violated his civil rights by discriminating against him

on the basis of his disability.

In response to petitioner's complaint, the Air Force filed a

motion to dismiss.

the motion.

On July 31, 2009, the District Court granted

The court concluded that petitioner was not

appealing his removal from service but instead was appealing the

MSPB order that denied his petition for enforcement of the

backpay award and reinstatement. s An appeal of the MSPB decision

of October 4, 2007, finding that petitioner failed to prove the

affirmative defense of disability discrimination, would be time

barred.

In addition, the court concluded that it did not have

jurisdiction over petitioner's complaint because petitioner

failed to raise the discrimination issue before the ALJ or the

MSPB during his appeal of the petition for enforcement.

On September 25, 2009, petitioner appealed the District

Court's ruling to the U.S. Court of Appeals for the Fifth

Circuit.

On April 20, 2010, the Court of Appeals for the Fifth

Circuit affirmed the dismissal for lack of jurisdiction, finding

that petitioner only appealed the petition for enforcement of the

MSPB order, not the decision denying his disability

discrimination claim.

Ryan v. Dept. of the Air Force, 375 Fed.

Appx. 371 (5th Cir. 2010).

l

|'

- 9 II.

TSP Loan and Deemed Distribution

On May -18, 2006, because of petitioner's removal from a

service on March 21, 2006, the TSP sent him a letter requesting

that he repay his outstanding loan balance of $13,976 before

August 4, 2006.

The TSP advised petitioner that, alternatively,

he could sign the intent not to repay statement enclosed with the

letter.

If petitioner signed the intent not to repay statemeñt

or if he failed to repay the balance, the TSP would close the

loan on August 21, 2006, and the remaining loan-balance would be

treated as a deemed taxable distribution for the year.

The TSP

warned petitioner that he could be liable for an early withdrawal

penalty if he failed to repay the loan balance within the

specified period.

Petitioner did not sign the intent not to repay, statement

but instead continued to make loan payments to the TSP. 2 The TSP

processed petitioner's payments through August 16, 2006, leaving

him with an outstanding loan balance of $9,784.

On August 21,

2006, the TSP closed the loan because petitioner failed to repay

the outstanding balance.

Petitioner submitted an additional a

payment in late August, but since the loan had been closed, the

TSP refused to accept it.

On August 31, 2006, petitioner sent a letter to the TSP

requesting that the TSP restore his loan and accept his future

loan payments.

Petitioner alleged that, at the initial hearing,

-

10

-

the ALJ stated that petitioner's removal from the Air Force was

"unwarranted," and that the ALJ planned to reinstate petitioner.

The TSP did not restore the loan, accept future payments, or take

any other action.

Subsequently, the TSP mailed petitioners a Form 1099-R,

Distributions From Pensions, Annuities, Retirement or ProfitSharing Plans,

IRAs, Insurance Contracts, etc., for 2006.

The

form indicated.that petitioner received a distribution of $9,7894

from his TSP account.

Petitioners included this distribution as

income on their timely filed 2006 Federal income tax return.

On February 23, 2009, respondent issued petitioners a notice

of deficiency for 2006.

In the notice respondent determined that

petitioners properly included the TSP loan balance as income.

Because the loan closing resulted in a deemed distribution of the

balance, respondent determined that petitioners were also liable

for the 10-percent additional tax under section 72(t) on early

distributions from qualified retirement plans.

On May 13, 2009,

petitioners timely filed a petition for review of the notice of

deficiency.

,

'The record does not reflect the reason for the $5

difference between the loan balance in August 2006 and the amount

shown on Form 1099-R.

- 11 OPINION

I.

Taxation of the Deemed Distribution

A.

Burden of Proof

Ordinarily, the Commissioner's determinations in a notice of

deficiency are presumed correct and the taxpayer bears the burden

of proving by a preponderance of the evidence that those

determinations are incorrect.

290 U.S.

111,

115

(1933).

Rule 142(a); Welch v. Helvering,

Under section 7491(a), however, the

burden of proof may shift to the Commissioner with respect to a

factual issue relevant to a taxpayer's liability for tax, but

only if the taxpayer produces credible evidence to support his

position, the taxpayer complied with the substantiation

requirements, and the taxpayer cooperated with the Secretary?

with regard to all reasonable requests for information.

Petitioner does not contend that section 7491(a) (1) applies, nor

does the record establish that the requirements of section

7491(a) (2)

have been met.

Because petitioner is asserting a position that is contrary

to the position taken on his 2006 return, he must offer cogent

proof that his return position was incorrect.

See Mendes v.

7The term "Secretary" means "the Secretary of the Treasury

or his delegate", sec. 7701(a)-(11) (B), and the term "or his

delegate" means "any officer, employee, or agency of the Treasury

Department duly authorized by the Secretary of the Treasury

directly, or indirectly by one or more redelegations of

authority, to perform the function mentioned or described in the

context",

sec.

7701(a) (12) (A) (i).

- 12 Commissioner, 121 T.C. 308, 312

(2003).

Thus, petitioner not

only bears the burden of proving that respondent erroneously

determined that petitioners are liable for the 10-percent

additional tax of section 72(t) with respect to a deemed

distribution to petitioner of the unpaid loan balance, but

petitioner also bears the burden of introducing cogent proof that

his inclusion of the loan balance in income was incorrect.

B.

Parties' Arguments

Petitioner argues that he erroneously included the deemed

distribution in income for 2006, and therefore:

(1) Respondent

should refund the income tax petitioner paid on the deemed

distribution; and (2). petitioner is not liable for the 10-percent

additional tax.

Petitioner argues that he could not have

received a deemed distribution in 2006 because he never separated

from Government service and the TSP had no right to close his

loan.

Petitioner relies on Burton v. Commissioner, 99 T.C. 622

(1992)," where we defined separation from service as the point

when an employee severs his connection with his employer.

626.

Id. at

Because of ongoing litigation over his removal, as well as

the MSPB decision ordering his reinstatement, petitioner argues

"In that case, we concluded that an individual's change from

employee status to sole proprietor status did not constitute a

separation from service for sec. 402(e) purposes. Burton v.

Commissioner, 99 T.C. 622, 629 (1992). Because the taxpayer

merely liquidated his single member professional association and

continued to pursue the same profession as a sole proprietor, the

taxpayer did not separate from service.

Id.

- 13 that he did not sever his connection with the Air Force in 2006

and therefore no distribution occurred.

If no distribution

occurred, petitioner contends that he cannot be liable for the

10-percent additional tax on an early distribution from a

qualified retirement plan.

Respondent argues that petitioner's reliance on the phrase

"separation from service" is misplaced.'

Under section 72(p), a

loan is not taxable at the time of-distribution provided that the

recipient complies'with the terms of the loan agreement.

Respondent argues that when petitioner stopped making payments on

the loan in August 2006, the loan no longer qualified for the

section 72(p) exception and the balance became a deemed

distribution.

According to respondent, petitioner's attempted

payment in August 2006 after the loan was closed is irrelevant

because the TSP did not accept this payment.

Finally, respondent

argues that petitioner is liable for the 10-percent additional

tax under section 72(t) because he received an early distribution

from his retirement plan, and no exception applies.

C.

Taxation of TSP Loans and the Section 72(p) Exception

The TSP is a retirement plan for-Federal Government

employees.

Sec. 7701(j) (1); see also Dollander v. Commissioner,

T.C. Memo. 2009-187.

It is a qualified plan under section

"Petitioner cites sec. 401(k) (2),(B) when discussing

separation from service, but sec. 401(k) (2) (B), as in effect for

2006, does not contain the phrase "separation from service".

- 14 -

401(a), and any distribution from the TSP is a distribution from

a qualified plan.

Sec.

7701(j) (1).

Generally, if a participant re.ceives a loan from a qualified

plan, the amount of the loan is a taxable distribution in the

year received.

Sec. 72 (p) (1) (A).

However, a loan is not a

taxable distribution if the loan meets 3 requirements:

(1) The

principal amount of the loan does not exceed the statutorily

specified amount;

(2) the loan is repayable within 5 years; and

(3) the loan requires substantially level amortization over the

loan term.

Sec. 72(p) (2).

If the TSP does not notify the

participant that the loan distribution was taxable in the year

received, this Court may assume that the loan initially qualified

for the section 72(p) exception.

Sec. 72(p) (2) (A); see also

Royal v. Commissioner, T.C. Memo. 2006-72.

The TSP did not notify petitioner that the loan was a

taxable distribution for 2003, the loan origination year.

Consequently, we shall assume that petitioner's loan qualified

under the section 72(p) exception when the loan was made in 2003.

D.

Effect of Failure To Meet Section 72(p) Requirements

Although a loan originally may satisfy the section 72(p)

requirements,

"a deemed distribution occurs at the first time

that the requirements * * * of this section are not satisfied, in

form or in operation."

Regs.

Sec. 1.72(p)-1, Q&A-4(a), Income Tax

If "payments are not made in accordance with the terms

- 15 applicable to the loan, a deemed distribution occurs asia result

of the failure to make such payments."

Id.; see also-Duncan v.

Commissioner, T.C. Memo. 2005-171; Molina v. Commissioner,a T.C.

Memo. 2004-258.

The plan administrator may provide the

'

participant with an opportunity to cure the failure and, if sö, a

deemed distribution does not occur until the end of the cure

period.

Sec. 1.72 (p)-1, Q&A-10(a), Income Tax-Regs.; see also

Owusu v.

Commissioner,

T.C. Memo. 2010-186.

If a TSP participant "separates -from Government service,"

applicable regulations require the participant to "repay the

outstanding loan principal and interest in full within the period

specified by the notice to the participant frome the TSP record

keeper explaining the participant's repayment options".

sec; 1655.15(a) (2)

(2007)."

5 C.F.R.

The "regulations define separation

from Government service as "the cessation of employment with the

Federal Government * * * for 31 or more full calendar days."

C.F.R. sec.

1690.1

5

(2007).

The regulations thus allow the TSP to accelerate repayment

of the loan balance after a participant -separates from Government

service.

5 C.F.R. sec.

1655.15(a)

(2007)'; see also Duncan v.

"In discussing the applicability of the phrase "separation

from service," the parties -erroneously analyzed sec.

401(k) (2) (B). The TSP regulation permitting repayment

acceleration usea the phrase "separates from Government service",

and this phrase is the relevant one.

5 C.F.R. sec. 1655.15(a) (2)

(2007).

- 16 Commissioner, supra.

Failure to comply with the accelerated

payment schedule constitutes a failure to repay the loan under

the terms of the loan agreement.

Royal v. Commissioner, supra;

Duncan v..Commissioner, supra; sec. 1.72(p)-1, Q&A-4(a), Income

Tax Regs.

If an agency takes an adverse personnel action against an

employee that is unjustified or unwarranted, the MSPB may order

that the agency provide the employee with "the pay, allowances,

and differentials the employee would have received if the

unjustified or sunwarranted personnel action had not occurred",

including correction of any errors in the employee's TSP plan.

C.F.R.

sec.

550.805(a) (2),. (h)

(2008).

5

If an agency reinstates a

wrongfully terminated participant, the participant must notify

the TSP within 90 days of reinstatement to restore any previously

withdrawn amount to the TSP account.

5 C.F.R.

sec.

1605.13(d)

(2008)."

During the 90-day period a participant may also elect "to

reinstate a loan which was previously declared to be a taxable

distribution."

5 C.F.R. sec. 1605.13(e)

(2008).

The regulations

do not require the TSP to automatically restore the participant's

loan but instead require the participant to take action to

"If a participant timely -requests restoration of the loan,

the participant may either repay the loan balance in full upon

restoration or recommence making payments on the loan as

scheduled.

Uniformed Services Employment and Reemployment Rights

Regulations,

67 Fed. Reg. 35051

(proposed May 17,

2002).

- 17 reinstate the loan.

5 C.F.R.

sec.

1605.13(d)

(2008).

The

reinstated participant must notify the TSP within 90 days of

reinstatement or accept the consequences of the loan closing.

Id."

Petitioner's 2003 TSP loan transaction met the requirements

of section 72(p) in 2003, and therefore the loan was not a

taxable distribution in 2003.

On March 21, 2006, the Air Force

removed petitioner from service and 'notified the TSP.

The Air

Force did not reinstate petitioner within 31 days from March 21,

2006.

As a result, the TSP notified petitioner that the loan

provisions required repayment of the outstanding balance by

August 21, 2006, to avoid a taxable deemed distribution.

The

period from May 18 to August 21, 2006, constituted a cure

period," during which time petitioner could have repaid the

entire balance, thereby avoiding a taxable deemed distribution.

When petitioner failed to repay the entire balance by August

21, 2006, petitioner ceased to be in compliance with the loan

agreement, the loan no longer qualif-ied for the section 72(p)

"Additionally, the agency need not notify the reinstated

participant of the right to restore a TSP loan previously treated

as a taxable distribution.

See Crazy Thunder-Collier v. Dept. of

the Interior,

2010 M.S.P.B. 202

(2010).

"During this time petitioner submitted multiple payments to

the TSP which the TSP credited against his outstanding balance.

The TSP properly rejected petitioner's attempted payment made

after Aug. 21, 2006, because this payment was outside the cure

period.

- 18 -

exception, 'and a deemed -distribution occurred."

As of December

31, 2006, the -loan balance was,a deemed distribution.

If subsequent reinstatement entitled petitioner to loan

restoration, the regulations required petitioner to notify the

TSP within 90 days of his reinstatement.

Petitioner contends

that at the initial hearing, the ALJ made a statement that

petitioner would be reinstated.

Relying on the ALJ's remark,

petitioner contacted the TSP via -letter dated August 31, 2006,

and requested that the TSP restore his loan.

However, the -ALJ's

statement was not an official reinstatement, and the ALJ's

decision in fact upheld the Air Force's decision to remove

petitioner.

Thus, petitioner did not make a timely request for

loan restoration in his August 31, 2006,

letter.

When, pursuant to the MSPB order, the Air Force reinstated

petitioner on October 15, 2007, he had 90 days to notify the TSP

of his reinstatement and erequest that his loan be restored.

Petitioner has submitted no.credible evidence that he contacted

the TSP at any time after the October 15, 2007, MSPB decision and

thus petitioner has not produced credible evidence that he

notified the TSP of the reinstatement within 90 days.

Therefore,

aRespondent argues that since the TSP did not accept

petitioner's late August payment, petitioner never made this

payment. We base our holding on.the fact athat petitioner failed

to pay the remaining balance before the end of the cure period or

notify the TSP of his reinstatement.

- 19 respondent properly determined that the loan balance of $9,784

was a taxable deemed distribution, and we so hold.

II.

Section 72(t) Additional Tax

Section 72(t) (1) imposes a 10-percent additional tax when a

qualified retirement plan participant receives an early

distribution that fails to satisfy one of the statutory

exceptions.

Petitioner's deemed distribution of $9,784 is an

early distribution from a qualified retirement plan.

Accordingly, the 10-percent additional tax applies to the $9,784

unless petitioner qualifies for an exception.

See sec. 72(t) (1);

see also Stipe v. Commissioner, T.C. Memo. 2011-92; Dollander v.

Commissioner, T.C. Memo. 2009-187.

Petitioner has not alleged that any exception applies, nor

has he introduced any evidence that could allow us to conclude

that an exception applies.

Therefore, petitioner is liable for

the 10-percent additional tax on his early deemed distribution of

$9,784.

We have considered the remaining arguments of both parties

for results contrary to those expressed herein and, to the extent

not discussed above,

find those arguments to be irrelevant, moot,

or without merit.

To reflect the foregoing,

Decision will be entered

for respondent.