Kenya Birth Certificate Rejected

No, this has nothing to do with Barack Obama, and where he was born.

In a recent Tax Court case, Wilfred Omoloh found himself embroiled in a dispute over how old he was. There are various age limitations and age-related provisions in the Internal Revenue Code. This is the first time I recall litigation over a taxpayer’s actual age regarding such provisions. Here, the question was whether the taxpayer was subject to a 10% early withdrawal tax under Code §72(t) for a distribution taken from a qualified retirement plan while the participant was under the age of 59 1/2.

Wilfred was born in the Republic of Kenya and became a U.S. citizen in 1997. In preliminary proceedings, he represented that he was born on October 1, 1951, which made him younger than 59 1/2 at the time of the distribution. He then corrected it to October 1, 1950, which would have made him older than 59 1/2.

The government argued his driver’s license and certificate of naturalization, other immigration documents, college transcript, and a court petition for a name change had an October 1, 1952 date of birth. However, Wilfred acquired and presented a newly issued Kenya birth certificate showing an October 1, 1950 date of birth.

The Court sided with the government and applied the 10% penalty, in large part because Kenya had issued the birth certificate based on information supplied by Wilfred.

Not a surprising result, but interesting as to being a litigated dispute over age.

Omoloh, TC Summary Opinion 2017-64