Analysis of and reflections on recent cases and rulings.

AuthorBeavers, James A.

Gross Income

Distribution from 401 (k) plan taxable to taxpayer with diabetes

A taxpayer who had diabetes but was able to control it with insulin and other medication could not exclude a distribution from a Sec. 401(k) plan from income and was subject to the Sec. 72(t) addition to tax for premature distributions on it.


In 2017, Robert Lucas, a software developer, lost his job, causing him to experience financial difficulties. To make ends meet, he obtained a distribution of $19,365 during that year from a Sec. 401 (k) plan account he owned that was administered by Matrix Trust Co. He had not reached age 591/2 at the time, and Matrix accordingly reported this amount as an early distribution with no known exception on Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.

For 2017, Lucas reported the distribution on his federal income tax return but did not include it in his taxable income. Lucas had been diagnosed with diabetes in 2015, but he had been effectively treated with insulin shots and other medications. He did not include the 401(k) distribution on his return because he believed that the distribution did not constitute income due to his medical condition.

The IRS thought differently and issued Lucas a notice of deficiency for the 2017 tax year. The deficiency of $4,899 was based on the inclusion of the 401(k) distribution in his 2017 gross income and the 10% additional tax imposed by Sec. 72(t) for premature distributions from qualified retirement plans. Lucas challenged the IRS's determination in the Tax Court.

The Tax Court's decision

The Tax Court held that Lucas was required to include the distribution from his 401(k) in income in 2017 and was subject to the Sec. 72(t) addition to tax.

Income exclusion: As the Tax Court explained, gross income, under Sec. 61(a), includes all income from whatever source derived, except as otherwise provided. Under Secs. 61(b), 72(a)(1), 402(a), and 401(b)(2) and Tax Court precedent, this definition includes distributions from employees' trusts. One type of employees'trust is a 401 (k) plan.

Although it was undisputed that Lucas received a distribution from his 401(k) plan in 2017, he asserted in Tax Court that this distribution should be excluded from his gross income because of his diabetes, relying on information from a website that (in his view) spoke to these matters.

The Tax Court first found that the website Lucas relied on addressed the applicability of the early-withdrawal penalty in cases of disability, which it noted is a distinct subject from whether the distribution counts as income for those experiencing a disability. More significantly, the court stated, the website does not constitute legal authority, and nothing in the Code, regulations, or the relevant case law supported Lucas's interpretation. Therefore, the court concluded that the retirement distribution income must be included in his 2017 gross income.

Sec. 72(t) addition to tax: Under Secs. 72(t), 401 (k), and 4974(c), distributions from a qualified retirement account (which, as noted above, includes a 401(k) account) to a taxpayer under 591/2 years of age at the time of the distribution are subject to a 10% additional tax unless an exception applies. One of these exceptions, provided under Sec. 72(t)(2)(A)(iii), is for a...

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