                         T.C. Memo. 2002-123



                       UNITED STATES TAX COURT



              EDWARD KENNETH METCALF, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5043-00.               Filed May 22, 2002.


     Edward Kenneth Metcalf, pro se.

     Stephen P. Baker, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a deficiency of $459

in petitioner’s 1996 Federal income tax.    Unless otherwise

indicated, all section references are to the Internal Revenue

Code in effect for the year in issue.
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     After concessions,1 the only issue for decision is whether

petitioner has an overpayment of tax for 1996 related to a

distribution from his individual retirement account (IRA).

                        FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time he filed the

petition, petitioner resided in Anchorage, Alaska.

     In a letter dated November 3, 1995, Key Bank informed

petitioner that, because he had reached the age of 70½, he was

required to start taking withdrawals from his IRA.    On November

20, 1995, petitioner responded with instructions for the bank to

mail him a check for the minimum withdrawal amount.

     In 1996, petitioner mistakenly signed a form to close out

his IRA as of December 31, 1996.   On December 31, 1996, Key Bank

closed petitioner’s IRA account and sent petitioner the entire

balance.

     Petitioner reported his entire 1996 IRA distribution on his

timely 1996 income tax return (1996 return) and paid tax on it.

Petitioner did not roll over this distribution into another IRA.


     1
        Respondent concedes every issue raised in the statutory
notice of deficiency, and petitioner concedes his claim for an
overpayment related to interest on savings bonds.
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     Petitioner timely amended his 1996 return to claim a refund

for the tax associated with the 1996 IRA distribution.      In the

answer, respondent denied petitioner’s claim for overpayment.

                                OPINION

     In years where this Court has jurisdiction to redetermine a

taxpayer’s deficiency, we also have jurisdiction to decide

whether the taxpayer has made an overpayment of income tax.      Sec.

6512(b)(1); Winn-Dixie Stores, Inc. & Subs. v. Commissioner, 110

T.C. 291, 295 (1998).   Respondent issued a notice of deficiency

for 1996, and petitioner filed a timely petition with this Court

contesting respondent’s determinations.    Accordingly, we have

jurisdiction to decide whether petitioner has an overpayment for

1996.

     Petitioner contends he has 3 years to amend his return to

roll over his IRA, to claim a refund of the taxes paid on his IRA

distribution, and to report his “correct” minimum distribution.

Section 6511(a), however, provides the period of limitations for

filing a claim for credit or refund of an overpayment of any tax.

     Generally, distributions from IRAs are includable in the

distributee’s income in the year of distribution as provided in

section 72.   Sec. 408(d)(1); Schoof v. Commissioner, 110 T.C. 1,

7 (1998).   Section 408(d)(3) provides an exception to this rule

for “rollover contributions”.    To qualify as a rollover

contribution, an IRA distribution must be rolled over within 60
                                 - 4 -

days of receipt.2   Sec. 408(d)(3); Smithsi v. Commissioner, T.C.

Memo. 1981-652; Handy v. Commissioner, T.C. Memo. 1981-411.

     Petitioner argues that the Internal Revenue Service (IRS)

District Director advised him to file an amended return so that

petitioner could roll over his IRA.      On May 23, 1997, petitioner

wrote a letter to the District Director of the IRS in Seattle,

Washington, explaining that petitioner made a mistake closing out

his IRA and requesting authorization to roll over the IRA

withdrawal even though more than 60 days had passed since the

distribution.   This letter contains a handwritten note at the

bottom:   “Mr. Metcalf:   I’m returning this information after

talking to you today.     You plan to file a 1040X for 1996.

Thanks.   Mr. Johnson 915215.”

     This note did not advise petitioner to file an amended

return; it merely acknowledged the fact that petitioner intended

to file an amended return.     Even if the IRS had advised

petitioner to file an amended return, the possibility that

petitioner may have received incorrect advice does not alter the

60-day rule.    See Smithsi v. Commissioner, supra.

     The present case involves the failure to satisfy a

fundamental element of the statutory requirements for an IRA

rollover contribution--namely, the failure to timely roll over



     2
        Any amount, however, that was required to be distributed
to petitioner because he had reached age 70½ would be ineligible
for rollover treatment. Sec. 408(d)(3)(E).
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the distribution within 60 days.    Neither the Code nor the

regulations provide relief from taxation of the amount

distributed to petitioner from an IRA but not timely rolled over.

See Wood v. Commissioner, 93 T.C. 114, 119 (1989).       Although we

are sympathetic to petitioner’s plight, we hold that the IRA

distribution to petitioner in 1996 is includable in his 1996

income.   Accordingly, petitioner’s claim for overpayment is

denied.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we find them to be irrelevant or without merit.

     To reflect the foregoing,

                                              Decision will be entered

                                         finding no deficiency or

                                         overpayment.
