Ida Mae Whittaker - Page 6




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          Nothing in the record indicates that petitioner’s grandchild                
          owned any portion of the funds in the account.  Instead, the                
          record clearly establishes that petitioner had full control over            
          the bank account.  Copies of her bank statements show that                  
          petitioner routinely withdrew funds for personal expenditures.              
          The facts of this case establish that the income from the plan              
          was payable to petitioner and was paid to an account to which she           
          directed payment and over which she exercised complete control.             
               Petitioner’s reliance on the alleged mistaken advice of her            
          tax preparer also has no bearing on her tax liability.  Such                
          reliance might be relevant if respondent had determined penalties           
          or additions to tax.  See, e.g., Freytag v. Commissioner, 89 T.C.           
          849, 888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd. 501             
          U.S. 868 (1991); Dyckman v. Commissioner, T.C. Memo. 1999-79.               
          But no penalties or additions to tax are in issue here.                     
          Petitioner is responsible for the deficiency in tax even though             
          she relied on erroneous advice.  See United States v. Boyle, 469            



               3(...continued)                                                        
               establish an irrevocable trust during the lifetime of                  
               the depositor.  It is a tentative trust merely,                        
               revocable at will, until the depositor dies or                         
               completes the gift in his lifetime by some unequivocal                 
               act or declaration, such as delivery of the pass book                  
               or notice to the beneficiary.  In case the depositor                   
               dies before the beneficiary without revocation, or some                
               decisive act or declaration of disaffirmance, the                      
               presumption arises that an absolute trust was created                  
               as to the balance on hand at the death of the                          
               depositor.” * * *                                                      





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