Richard B. Crow - Page 7




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               Rev. Rul. 78-406, 1978-2 C.B. 157, states that the direct              
          transfer of funds from one IRA trustee to a new IRA trustee which           
          involves no payment or distribution of funds to the IRA                     
          participant is not a rollover contribution because the funds are            
          not within the direct control or use of the participant.6  See              
          also Martin v. Commissioner, T.C. Memo. 1992-331, affd. without             
          published opinion 987 F.2d 770 (5th Cir. 1993).  The revenue                
          ruling further states that this conclusion would apply whether              
          the bank trustee initiates, or the IRA participant directs, the             
          transfer of funds.  Rev. Rul. 78-406, 1978-2 C.B. at 157-158.               
          Thus, Rev. Rul. 78-406, supra, indicates that a trustee-to-                 
          trustee transfer which otherwise meets the requirements of the              
          revenue ruling is not a taxable transaction because no amount is            
          treated as paid or distributed out of an IRA.                               
               In the instant case, petitioner appears to argue that the              
          funds withdrawn from the IRA on August 28, 1998, are not                    
          includable in gross income because either (1) the bank mistakenly           
          rolled over the funds into a nonqualified annuity instead of                
          correctly rolling over the funds into an IRA or other qualified             
          plan or (2) the bank mistakenly rolled over the funds instead of            
          correctly making a trustee-to-trustee transfer to an IRA or other           
          qualified plan.  The parties dispute whether the bank made a                


               6We note that, although entitled to consideration, revenue             
          rulings are not precedent.  Dixon v. United States, 381 U.S. 68,            
          73 (1965).                                                                  





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