Richard B. Crow - Page 10




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          We distinguished Wood v. Commissioner, supra, on the ground that            
          it involved procedural defects in the execution of a rollover.              
          Schoof v. Commissioner, 110 T.C. at 11.                                     
               The evidence in the record indicates that Ms. Koble and the            
          bank felt that they had mistakenly characterized the transactions           
          and that they were attempting to correct their mistake.  This was           
          not the only mistake or defect in the rollover or transfer, nor             
          was this defect corrected in a timely manner.  The parties                  
          stipulated that, as of March 12, 2002, the funds withdrawn from             
          the IRA on August 28, 1998, remained in the AEL nonqualified                
          annuity.  A fundamental requirement for a rollover contribution             
          under section 408(d)(3) or a trustee-to-trustee transfer under              
          Rev. Rul. 78-406, supra, is that funds actually be rolled over or           
          transferred into an IRA or other qualified plan.  We believe that           
          failure of this fundamental requirement extends beyond the                  
          procedural error in Wood v. Commissioner, supra, which was cured            
          by substantial compliance and the fulfilment of the remaining               
          requirements of the statue.  Thus, like the situation in Schoof             
          v. Commissioner, supra, we find that the failure to roll over or            
          transfer the funds to an IRA or other qualified plan is fatal to            
          petitioner’s case.8  Accordingly, we hold that the $39,295.08 is            
          includable in petitioner’s 1998 gross income.                               


               8Again, we note that the parties stipulated that at the time           
          this case was submitted the funds remained in the nonqualified              
          annuity.                                                                    





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