Robert Ancira - Page 6




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               Neither the Internal Revenue Code nor the applicable                     
          regulations provide specific guidance on whether an amount is                 
          considered to have been “paid or distributed out of an individual             
          retirement plan” in the circumstances here.  If, on petitioner’s              
          instructions, Pershing had paid the $40,000 to S.K. for its                   
          stock, there simply would have been an investment in an asset of              
          the IRA, and there would have been no question whether there had              
          been a distribution to petitioner.  Similarly, if Pershing had                
          delivered the check to a broker who had purchased the shares for              
          petitioner’s IRA account, there would have been no distribution.              
          The broker would have been Pershing’s agent.  The question then               
          is whether, when Pershing delivered the check made out to S.K. to             
          petitioner, who in turn delivered it to S.K. to purchase the                  
          stock for the IRA account, there was a distribution to                        
          petitioner.  We point out that the question does not involve                  
          whether there was a nontaxable rollover of the IRA assets within              
          the period specified by section 408(d)(3).                                    
               In Diamond v. Commissioner, 56 T.C. 530, 541 (1971), affd.               
          492 F.2d 286 (7th Cir. 1974), we noted:  “We accept as sound law              
          the rule that a taxpayer need not treat as income moneys which he             
          did not receive under a claim of right, which were not his to                 
          keep, and which he was required to transmit to someone else as a              
          mere conduit.”                                                                








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