Eugene Dollander v. Internal Revenue Service

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________ FILED
U.S. COURT OF APPEALS
No. 10-10393 ELEVENTH CIRCUIT
JUNE 22, 2010
Non-Argument Calendar
JOHN LEY
______________ CLERK
Agency No. 4936-08
EUGENE DOLLANDER,
GLENDA DOLLANDER,
Petitioners,
versus
INTERNAL REVENUE SERVICE,
Respondent.
__________________________________________
Petition for Review of a Decision of the
U.S.Tax Court
__________________________________________
(June 22, 2010)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Eugene Dollander was a federal employee who worked for the Department
of Veterans Affairs (VA) as a staff registered nurse. While employed with the
VA, he established a Thrift Savings Plan (TSP) account. As a result of mental and
physical illnesses, and financial problems including a negative cash flow,
Dollander withdrew $158,000 from his TSP account as a financial hardship
distribution. He and his wife, Glenda M. Dollander, as joint filers, later received a
notice of tax deficiency from the Internal Revenue Service (IRS) reflecting a tax
increase of $16,918 and a penalty of $217.40 for taxable year 2005 representing
the 10-percent additional tax under 26 U.S.C. § 72(t)(2)(A) for early distributions
from a qualified retirement plan. They were also assessed a $3,384.00 accuracy-
related penalty pursuant to 26 U.S.C. § 6662(a) because they understated some
interest income and failed to report the cancellation of debt income. The
Dollanders, pro se, appeal the Tax Court’s order finding them liable for these
income tax deficiencies.
We find that the Tax Court correctly found that the Dollanders were liable
for the additional 10-percent tax on their TSP withdrawal because there is no
financial hardship exemption in § 72(t). This statute states that “[i]f any taxpayer
receives any amount from a qualified retirement plan (as defined in section
4974(c)), the taxpayer’s tax under this chapter for the taxable year in which such
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amount is received shall be increased by an amount equal to 10 percent of the
portion of such amount which is includible in gross income.” Although § 72(t)
lists several exceptions that may give rise to an escape from the 10-percent
additional tax for early withdrawals, financial hardship is not one of them.1 The
Supreme Court has held that “exemptions from taxation are not to be implied; they
must be unambiguously proved.” United States v. Wells Fargo Bank, 485 U.S.
351, 354, 108 S. Ct. 1179, 1182 (1988).
As to the § 6662(a) accuracy-related penalty, the Tax Court’s finding is not
challenged in the Dollanders’ brief and is therefore waived on appeal. See Horsley
v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002) (holding that issues not argued
on appeal by pro se litigants are waived).
Accordingly, after considering the record and briefs, we find no error on the
part of the Tax Court, and we deny the petition for review.
PETITION DENIED.
1
One exemption is a withdrawal that is “attributable to the employee’s being disabled
within the meaning of subsection (m)(7),” see 26 U.S.C. § 72(t)(2)(A)(iii), but the Dollanders do
not challenge the Tax Court’s finding that Mr. Dollander was not disabled within the meaning of
§ 72(t).
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