Is this Penalty First Time Abate eligible?

[timbukktoo]

I had to pay a Penalty to the IRS because my previous employer’s financial institution distributed to me a portion of my deferred compensation too early after retirement (by 5 months). This was categorized as a prohibited acceleration under Section 409A of the Internal Revenue Code. To correct this error, I was told to return this distribution and I was also required to file an amended 2020 tax return that includes a payment to the IRS that reflects a Penalty calculated by multiplying 20% of my distribution. My question is if this type of Penalty can be abated using First Time Abatement with the IRS?

[MonikaK1 · Accepted solution]

No; only certain penalties are eligible for First Time Abatement, including:

Failure to File – when the penalty is applied to:

• Tax returns – IRC 6651(a)(1)
• Partnership returns – IRC 6698(a)(1)
• S Corporation returns – IRC 6699(a)(1)

Failure to Pay – when the tax

• Shown on the return is not paid by the due date – IRC 6651(a)(2)
• Required to be shown on a return, but was not, and that tax was not paid by the date stated in the notice or demand for payment under IRC 6651(a)(3)

Failure to Deposit – when the tax

• Was not deposited in the correct amount, within the prescribed time period, and/or in the required manner – IRC 6656

You may receive relief from one or more of these penalties on a tax return during a single tax period. They consider First Time Abate relief regardless of the penalty amount.

However, the IRS has other penalty relief procedures for other types of penalties. 

The early withdrawal "penalty" is really more of an excise tax than a penalty. The funds would have to have been returned to the account within 60 days in order to reverse the withdrawal.