James Joseph Timmerman - Page 7




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               Gross income includes all income from whatever source                  
          derived.  Sec. 61(a).  Section 61(b) specifically includes items            
          included under section 72 (relating to annuities).                          
               Petitioner does not dispute that he received the money from            
          Martin’s plan in 1998.  Petitioner instead argues that the                  
          transfer of Martin’s plan into the Inherited IRA should not be              
          characterized as a taxable distribution of Martin’s plan, but               
          rather a tax exempt “trustee-to-trustee” transfer.                          
               The law is clear.  Section 402(a) generally provides that              
          any amount actually distributed to any distributee by any                   
          employees’ trust, such as Martin’s plan, shall be taxable to the            
          distributee in the taxable year of the distributee in which                 
          distributed, under section 72.  Section 402(c) provides that                
          certain amounts paid to an employee from a qualified trust are              
          considered “rollover” distributions, and thus excludable from               
          income.  Under section 402(c)(5), a transfer from a qualified               
          plan to an eligible retirement plan, including an individual                
          retirement account described in section 408(a) or individual                
          retirement annuity described in section 408(b), shall be treated            
          as a rollover contribution described in section 408(d)(3).                  
          However, section 408(d)(3)(C) specifically denies the rollover              


               2(...continued)                                                        
          production under sec. 7491(c) because the record shows that                 
          petitioner failed to include the income on his return.  Higbee v.           
          Commissioner, 116 T.C. 438 (2001).                                          





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