Actress Helen Hayes is not often quoted in Tax Court proceedings, but this case the court referenced her statement that “age is not important unless you are a cheese” as an introduction to a case that dealt with a situation where age was important to more than cheese. The case of Omoloh v. Commissioner, T.C. Summ. Op. 2017-64.
The issue in this case arose because Mr. Omoloh had taken a distribution from an individual retirement account. The question was whether Mr. Omoloh was over age 59 ½ and thus not subject to the 10 percent additional tax on premature distributions from his IRA.
Many documents showed Mr. Omoloh’s date of birth as Oct. 1, 1952, a date that would have put his age at less than 59 ½ for the year of the distribution (2010). In addition to his Texas driver’s license and certificate of nationalization, the Tax Court noted the following documents that also showed the 1952 date of birth.
Other documents in the record that show his date of birth as October 1, 1952, include: (1) a Form IAP-66A, Certificate of Eligibility for Exchange Visitor (J-1) Status, certified by his sponsor on November 16, 1981; (2) a Form IAP-66A, certified by his sponsor on October 12, 1982; (3) a Form IAP-66A, certified by his sponsor on June 22, 1984; (4) a Form IAP-66A, certified by his sponsor on December 10, 1984; (5) a Form IAP-66A, certified by his sponsor on December 5, 1985; (6) a Form I-687, Application for Status as a Temporary Resident, dated May 4, 1988; (7) a Form I-688, Temporary Resident Card, issued on May 5, 1988; (8) a resident alien card; (9) a Transcript of Academic Record from the University of Georgia, printed on June 15, 1988; (10) a Federal Bureau of Investigation fingerprint card, dated October 27, 1988; (11) a Form I-698, Application to Adjust Status From Temporary to Permanent Resident, dated July 21, 1990; (12) a Form I-697A, Change of Address Card for Legalization, dated May 21, 1991; (13) a Form N-400, Application for Naturalization, dated February 28, 1996; and (14) a petition for name change filed with the U.S. District Court, granted on April 8, 1997.
Absent from that list is a birth certificate since, before this matter arose, Mr. Omoloh did not have one. But Mr. Omoloh obtained a birth certificate from authorities in Kenya before the trial, one that the IRS agreed was authentic that showed his date of birth as Oct. 1, 1950, a date that would mean he was over age 59 ½ for the year of the distribution.
But the IRS had reason to question the date the Kenyan authorities had placed on the birth certificate issued to Mr. Omoloh. The problem was that Mr. Omoloh had provided the Kenyan authorities with his date of birth when he applied for the birth certificate rather than that date reflecting a date in the agency’s records. The Tax Court shared the IRS’s concerns. While the Court was “reluctant to make any finding regarding the date of birth of petitioner or his former spouse,” since the burden was on Mr. Omoloh to prove his age in order to avoid the additional tax, the Court held that the he had failed to show the IRS imposition of the tax was in error.
 IRC §72(t)