Wallace W. Burke - Page 5

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          taxpayer’s gross income generally are not part of the taxpayer’s            
          investment in the contract, sec. 72(f).  Therefore, in the                  
          context of this case, a taxpayer’s investment in a contract                 
          includes only the amount of “after-tax contributions” and does              
          not include any “pre-tax contributions”.                                    
               On his 1999 return, petitioner elected to use the section              
          72(b) “safe harbor” provisions provided in Notice 88-118, 1988-2            
          C.B. 450, which were to be used for certain annuity payments made           
          from section 401(a) qualified plans, section 403(a) employee                
          annuities, and section 403(b) annuity contracts.1  Neither party            
          questions the applicability of these safe harbor provisions to              
          the case at hand; the dispute centers solely on the calculation             
          made thereunder.  As discussed below, the sole remaining issue is           
          the proper amount of petitioner’s investment in the contract.               
               For purposes of illustration, the following are summaries of           
          the calculations made by petitioner and respondent pursuant to              
          the applicable worksheet provided by the Internal Revenue Service           
          (the relevant line numbers of the worksheet are indicated):2                

          1Similar provisions were codified in sec. 72(d).  This                      
          subsection does not apply to the case at hand because it is                 
          inapplicable to annuities which started prior to November 19,               
          1996.  Small Business Job Protection Act of 1996, Pub. L. 104-              
          188, sec. 1403(b), 110 Stat. 1791.                                          
          2Although we use these worksheets to illustrate the dispute                 
          in this case, we note that the IRS guidance exists merely to                
          assist taxpayers in filing tax returns; neither the Commissioner            
          nor this Court is bound by such guidance where it is contrary to            
                                                             (continued...)           





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