Sanford M. and Sally Kirshenbaum - Page 13




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          bank to another trustee bank is not a rollover contribution                 
          because no such funds were paid or distributed to the participant           
          and such funds are not within the direct control and use of the             
          participant.14  See Crow v. Commissioner, T.C. Memo. 2002-178;              
          Martin v. Commissioner, T.C. Memo. 1992-331, affd. without                  
          published opinion 987 F.2d 770 (5th Cir. 1993).  The revenue                
          ruling further states:  “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.              
          In other words, the revenue ruling suggests that a trustee-to-              
          trustee transfer is tax free to the IRA owner without the need              
          for the transfer to qualify as a rollover contribution.                     
               As relevant to the present case, an IRA is a trust created             
          or organized in the United States for the exclusive benefit of an           
          individual, but only if the written governing instrument creating           
          the trust meets certain statutory requirements.  Sec. 408(a);               
          sec. 1.408-2, Income Tax Regs.; see Cobb v. Commissioner, 77 T.C.           
          1096, 1099 (1981), affd. 680 F.2d 1388 (5th Cir. 1982).  Section            
          1.408-2(b), Income Tax Regs., specifically provides, in part,               
          that the instrument creating the trust must be in writing.  See             
          Phelan v. United States, Civil Action No. 83-1997-Z (D.C. Mass.             
          1984) (deposit of funds in bank not sufficient to constitute an             


               14  We 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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