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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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