Marcus Wayne and Judity Caroline Ramsey - Page 8

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          established a SEP for petitioner’s benefit, as required by section          
          408(k).  Even, however, were we to assume that there was an                 
          employer-established SEP for petitioner’s benefit, petitioners have         
          failed to show that Westech or any other employer of petitioner             
          made the required qualifying contribution to such a SEP.  Indeed,           
          the record indicates that the $11,250 deposit was made by                   
          petitioner, and not by Westech or another employer of petitioner.           
          Further, the record does not enable us to trace the source of the           
          $11,250 deposit to the $62,500 or any other employment payment              
          petitioner received from Westech.3  See sec. 408(l).  And finally,          
          the Forms W-2 attached to petitioners’ 1989 Form 1040 fail to               
          reflect any amount contributed by Westech to a SEP on petitioner’s          
          behalf.                                                                     
               Petitioners allege that not only was petitioner employed as            
          president of Cal-American during the first quarter of 1989, but             
          also for the remainder of 1989 he was self-employed as an insurance         
          consultant. As noted previously, self-employed individuals or sole          
          proprietors are treated as their own employers under a SEP plan.            
          See secs. 401(c)(4), 408(k)(7).  However, petitioners have failed           
          to prove that petitioner was self-employed at any time during 1989.         
          Indeed, the record supports a contrary conclusion.                          

               3    A letter from Bancsure to petitioner dated Mar. 31,               
          1989, refers to a total severance payment of $61,812.50, of which           
          $6,812.50 represented expense reimbursement and pension payments.           
          The letter makes no allocation of the $6,812.50 as between                  
          expense reimbursement and pension payments.                                 





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