Robert Ancira - Page 7




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               While the considerations in Diamond may have been different,             
          we believe that our observation is applicable here.  From our                 
          perspective, the soundest view of this case is that petitioner                
          acted as a conduit for Pershing by both arranging the stock                   
          purchase and ensuring that the check was delivered to S.K.  The               
          IRA was a custodial account, and Pershing was the trustee                     
          thereof, as well as the holder of the assets in the account.                  
          Sec. 408(h); sec. 1.408-2(d), Income Tax Regs.  Petitioner                    
          exercised his right, under the IRA agreement, to direct                       
          investments of the IRA assets by requesting that Pershing invest              
          a portion of his IRA assets in S.K. stock.  Because of Pershing’s             
          policy not to purchase securities that are not publicly traded,               
          petitioner acted as a conduit for Pershing in arranging the                   
          investment.  The check was payable to and negotiated by S.K.  The             
          stock was issued to the IRA account.                                          
               Petitioner’s actions as the IRA trustee’s agent consisted of             
          insuring that the check was delivered to S.K.  We are not aware               
          of any provisions of the Internal Revenue Code, applicable                    
          regulations, or case law that prohibit a taxpayer from acting as              
          a conduit for an IRA trustee under the circumstances presented                
          here.  We further note that it cannot be argued cogently that                 
          petitioner was in constructive receipt of the assets represented              
          by the transaction.  See Estate of Brooks v. Commissioner, 50                 
          T.C. 585 (1968).  “Its essence [of constructive receipt] is that              






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