Arthur F. Millard - Page 5

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               Section 408(d)(1) provides that any amount paid or                     
          distributed out of an individual retirement plan must be included           
          in gross income by the distributee in the manner provided under             
          section 72,2 except as otherwise provided.  The term “individual            
          retirement plan” includes an IRA.  Sec. 7701(a)(37).  However,              
          the amount distributed from an individual retirement plan is not            
          subject to tax if the amount is rolled over into an individual              
          retirement account or individual retirement annuity within 60               
          days of the distribution.  See sec. 408(d)(3).  In the instant              
          case, petitioner concedes that he made no rollover contribution             
          after receiving the original check from SouthTrust Bank.                    
               Cash method taxpayers must include all items of gross income           
          in the taxable year of actual or constructive receipt.3  Section            
          1.451-2(a), Income Tax Regs., sets forth the general rule for               
          constructive receipt of income as follows:                                  


               2Sec. 72(a) provides:                                                  
                    SEC. 72(a).   General Rule for Annuities.-- Except                
               as otherwise provided in this chapter, gross income                    
               includes any amount received as an annuity (whether for                
               a period certain or during one or more lives) under an                 
               annuity, endowment, or life insurance contract.                        
               3Sec. 1.446-1(c)(1)(i), Income Tax Regs., provides:                    
                    (i) Cash receipts and disbursements method.  Generally,           
               under the cash receipts and disbursements method in the                
               computation of taxable income, all items which constitute              
               gross income (whether in the form of cash, property, or                
               services) are to be included for the taxable year in which             
               actually or constructively received.  * * *.                           





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