      DENNIS E. BOHNER, PETITIONER v. COMMISSIONER
           OF INTERNAL REVENUE, RESPONDENT

          Docket No. 24166–12.        Filed September 23, 2014.

        While P worked for the Federal Government, he partici-
      pated in the Civil Service Retirement System (CSRS). After P
      retired, he received a letter explaining that he could elect to
      increase his CSRS retirement annuity by remitting a fixed
      sum. P remitted the funds to CSRS. Because P did not have
      sufficient funds in his bank account, he borrowed a portion of
      the fixed sum. P paid off the loan and replenished his bank
      account by making withdrawals from his traditional indi-
      vidual retirement account (IRA). P did not report any of the
      amounts he withdrew from his IRA as taxable income. P con-
      tends that he engaged in a tax-free rollover. R contends that
      rollover contributions cannot be made to CSRS. Held: Because
      CSRS did not accept his remittance as a rollover, P must
      include his withdrawals in his taxable income for the year at
      issue.

  Kathryn L. Everlove-Stone, for petitioner.
  Joel D. McMahan, for respondent.
   KERRIGAN, Judge: Respondent determined a deficiency of
$4,590 with respect to petitioner’s Federal income tax for tax
year 2010.
   Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the year in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
   The sole issue for consideration is whether a tax-free roll-
over occurred when petitioner withdrew funds from his tradi-
tional individual retirement account (IRA) to cover a deposit
of the same amount to the Civil Service Retirement System
(CSRS).
224
(224)             BOHNER v. COMMISSIONER                   225


                      FINDINGS OF FACT

   Some facts have been stipulated and are so found. Peti-
tioner resided in Florida when he filed the petition.
   Petitioner was an employee of the Social Security Adminis-
tration in 2009 and retired before April 13, 2010. He was
eligible to participate in Federal Government retirement
plans offered through the Office of Personnel Management
(OPM), and he participated in CSRS during his years of
Government service.
   After petitioner retired, OPM mailed him a letter on April
13, 2010, explaining that he could elect to increase his CSRS
retirement annuity by remitting $17,832 with respect to
creditable Government service for a period during which no
retirement contributions had been withheld from his salary.
The letter required that petitioner remit the funds within 15
days of the date of the letter. The letter was silent as to
whether the remittance could be made through a tax-free
rollover contribution.
   Petitioner elected to remit to CSRS the $17,832 to increase
his retirement annuity. Because petitioner did not have suffi-
cient funds to make the entire payment directly from his
bank account, he borrowed a portion of the $17,832 from a
friend. On April 27, 2010, petitioner mailed a check to OPM
for $17,832.
   During 2010 petitioner maintained a traditional IRA with
Fidelity Investments (Fidelity). Petitioner made two separate
requests to withdraw funds from his Fidelity IRA, one in
April 2010 and another in May 2010. Petitioner’s monthly
Fidelity investment report for April 2010 shows that he
requested a $5,000 distribution, of which $4,500 was sent to
him on April 15, 2010, and $500 was withheld to satisfy Fed-
eral income tax liability in connection with the distribution.
Petitioner’s Fidelity investment report for May 2010 shows
that he requested a $12,832 distribution, which was sent
entirely to him on May 3, 2010; no Federal tax was withheld.
Petitioner used the funds he received from Fidelity to
reimburse his friend and to replenish his bank account.
   Fidelity issued petitioner a Form 1099–R, Distributions
From Pensions, Annuities, Retirement or Profit-Sharing
Plans, IRAs, Insurance Contracts, etc., in which it reported
$17,832 in distributions and listed the entire $17,832 as tax-
226        143 UNITED STATES TAX COURT REPORTS           (224)


able income. On his Form 1040A, U.S. Individual Income Tax
Return, for tax year 2010 petitioner reported receipt of the
$17,832 in distributions from his Fidelity IRA on line 11a,
IRA Distributions. He did not report any of the $17,832 as
taxable income as a result of those distributions on line 11b,
Taxable Amount.
  On July 2, 2012, respondent issued petitioner a notice of
deficiency which determined a deficiency of $4,590 and
treated the $17,832 withdrawal from the IRA as taxable
income.

                          OPINION

  Generally, the Commissioner’s determinations in a notice
of deficiency are presumed correct, and the taxpayer bears
the burden of proving those determinations are erroneous.
Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).
The parties do not dispute any material facts; therefore, the
burden of proof is not at issue.
I. CSRS
  CSRS is a statutorily created retirement plan designed to
provide retirement benefits in the form of annuities and
lump-sum benefits to Federal civil service employees. See
generally 5 U.S.C. secs. 8331–8351 (2006). The statutory
provisions governing CSRS do not include a provision
allowing pretax employee contributions. Id. An eligible
employee contributes portions of his or her salary to CSRS,
and the employing agency withholds the contributions from
the employee’s salary. Id. sec. 8334(a)(1)(A); Malbon v.
United States, 43 F.3d 466, 467 (9th Cir. 1994); see also
Logsdon v. Commissioner, T.C. Memo. 1997–8, slip op. at 3–
4. Matching contributions are made from funds appropriated
for the employing agency. 5 U.S.C. sec. 8334(a)(1)(B)(i).
  To assure that income will be taxed only once, the Internal
Revenue Code deems an annuity, such as one for a CSRS
participant, to have two components: one taxable, one not.
See sec. 72; Montgomery v. United States, 18 F.3d 500 (7th
Cir. 1994). The employing agency withholds a mandatory
contribution from the employee’s salary, and that withheld
amount is after-tax income because it is taxable for the year
in which it is withheld. Malbon, 43 F.3d at 467. On distribu-
(224)              BOHNER v. COMMISSIONER                     227


tion that portion is nontaxable because it was already subject
to tax. See Montgomery, 18 F.3d at 500. The amount contrib-
uted by the employing agency and any interest earned on the
employee’s investment are not taxed to the employee until
distributed. Secs. 72, 402(a). This portion of the distribution
is the taxable component. Montgomery, 18 F.3d at 500.
   Petitioner contends that all distributions from CSRS are
taxable and that unless the distributions from his IRA are
excluded from income, he will be subject to double taxation.
Petitioner will not be subject to double taxation, however,
because under section 72 he will be able to exclude from his
gross income CSRS distributions attributable to his pre-
viously taxed contributions to the plan. See sec. 72(c)(1)(A).
Section 72(c)(1)(A) and (B) defines ‘‘investment in the con-
tract’’ as of the annuity starting date as ‘‘the aggregate
amount of premiums or other consideration paid for the con-
tract, minus * * * the aggregate amount received under the
contract before such date, to the extent that such amount
was excludable from gross income under this subtitle or prior
income tax laws.’’
   CSRS provisions include that ‘‘[e]ach employee or Member
credited with civilian service after July 31, 1920, for which
retirement deductions or deposits have not been made, may
deposit with interest an amount equal to * * * [certain
statutorily defined] percentages of his basic pay received for
that service’’. 5 U.S.C. sec. 8334(c). This provision allows civil
service employees to elect to make a deposit for creditable
Government service and thus increase their CSRS retirement
annuity. See Dela Cruz v. OPM, 553 Fed. Appx. 977 (Fed.
Cir. 2014).
II. Rollover Contributions Under Section 408(d)(3)
  In general, any amount paid or distributed out of an indi-
vidual retirement plan is included in the gross income of the
payee or distributee as provided in section 72. Sec. 408(d)(1);
Arnold v. Commissioner, 111 T.C. 250, 253 (1998). This gen-
eral rule does not apply to a rollover contribution. See sec.
408(d)(3)(A). A rollover contribution is any amount paid or
distributed out of an IRA or individual retirement annuity to
the individual for whose benefit the account or annuity is
maintained if the entire amount received is paid into an
228           143 UNITED STATES TAX COURT REPORTS                       (224)


eligible retirement plan no later than 60 days after receipt.
Sec. 408(d)(3)(A)(ii); see also Schoof v. Commissioner, 110
T.C. 1, 7 (1998). An ‘‘eligible retirement plan’’ is defined as
any (1) qualified trust; (2) annuity plan described in section
403(a); (3) eligible deferred compensation plan described in
section 457(b) which is maintained by an eligible employer
described in section 457(e)(1)(A); or (4) annuity contract
described in section 403(b). Secs. 408(d)(3)(A), 402(c)(8)(B). A
‘‘qualified trust’’ is any employees’ trust described in section
401(a) which is exempt from tax under section 501(a). Sec.
402(c)(8)(A). Respondent does not dispute that CSRS is a
qualified trust. 1
   Respondent contends, however, that petitioner’s deposit to
CSRS does not constitute a rollover contribution under sec-
tion 408(d)(3) because CSRS does not, and is not required to,
accept rollovers. 2
   Even though there is no specific provision in the Internal
Revenue Code concerning whether a qualified trust must
accept a rollover that is an indirect transfer from an IRA in
order to constitute an eligible retirement plan for purposes of
section 408(d)(3), this issue is contemplated in similar cir-
   1 The Commissioner has taken the position in published guidance that

CSRS is a qualified trust under sec. 401(a). See Rev. Rul. 74–138, 1974–
1 C.B. 29, 30 (‘‘[CSRS] is a qualified trust under section 401(a) of the Code
and is exempt from Federal income tax under section 501(a).’’); Rev. Rul.
68–486, 1968–2 C.B. 184; Rev. Rul. 58–472, 1958–2 C.B. 30; IRS Publ’n
721, Tax Guide to U.S. Civil Service Retirement Benefits 13 (rev. Feb. 22,
2011) (‘‘CSRS, FERS, and TSP are considered qualified retirement plans’’
for the purpose of determining whether a CSRS distribution can be used
in a tax-free rollover to another plan or trust). CSRS is a plan that meets
the requirements of sec. 401(a). Guilzon v. Commissioner, 97 T.C. 237, 241
(1991), aff ’d, 985 F.2d 819 (5th Cir. 1993); Gomez v. Commissioner, T.C.
Memo. 1996–212, slip op. at 5; Roundy v. Commissioner, T.C. Memo. 1995–
298, aff ’d, 122 F.3d 835 (9th Cir. 1997); Shimota v. United States, 21 Cl.
Ct. 510, 519 (1990), aff ’d, 943 F.2d 1312 (Fed. Cir. 1991).
   2 Respondent also contends that petitioner’s deposit to CSRS is not a

rollover because the funds paid to CSRS were not a distribution from an
IRA. We have held that the phrase ‘‘if the entire amount is contributed
into an eligible retirement plan’’ is not to be read so narrowly as to require
the taxpayer to roll over the exact same money that he or she received in
the distribution from the IRA. Zaklama v. Commissioner, T.C. Memo.
2012–346, at *68. Respondent did not raise the issue of the second IRA dis-
tribution’s taking place after petitioner’s deposit to CSRS, and we deem re-
spondent to have waived that issue. In any event, our disposition of this
case does not require addressing the timing of the second distribution.
(224)              BOHNER v. COMMISSIONER                    229


cumstances. Section 401(a)(31)(E) and the legislative history
associated with the rollover provision of section 402 address
this issue in the context of transfers from other qualified
trusts. For the purpose of a direct transfer of eligible rollover
distributions, a qualified trust plan must permit distributees
to elect to have a distribution paid directly to an eligible
retirement plan, which for this purpose must be a defined
contribution plan that permits the acceptance of rollover dis-
tributions. The Senate report explaining this provision
includes the following statement: ‘‘As under present law, a
transfer cannot be made to another qualified plan unless the
terms of the transferee plan permit the acceptance of such
transfer.’’ 138 Cong. Rec. S8180 (1992).
   The instant case does not involve a defined contribution
plan; rather, it involves a defined benefit plan. However, for
the reasons explained below, we conclude and hold that
because CSRS did not accept petitioner’s remittance as a roll-
over, he must include his withdrawals in his taxable income
for 2010.
   The letter that OPM sent to petitioner after he retired
explained how he could make a deposit to make up for years
for which no retirement contributions were withheld from his
pay. The letter requested that a check be sent to OPM for
these contributions; it is silent on whether the deposit can be
made as a rollover. Title 5 U.S.C. sec. 8334(c) does not
specifically permit civil service employees to remit the
deposit by means of a tax-free rollover contribution from an
IRA or another eligible retirement plan. The regulations
promulgated under 5 U.S.C. sec. 8334(a)(2) likewise do not
require CSRS to accept tax-free rollovers as a form of
deposit. 5 C.F.R. sec. 831.303 (2001).
   Amounts deposited under 5 U.S.C. sec. 8334(c) allow civil
service employees to make up for years in which there were
no contributions from their salaries. See 5 C.F.R. sec.
831.303. Deposited amounts take the place of after-tax con-
tributions that were not originally made. See 5 U.S.C. sec.
8334(a), (c). Only the portion of a distribution from an IRA
that is otherwise includible in gross income may be rolled
over from the IRA to an eligible retirement plan other than
an IRA. Sec. 408(d)(3)(A)(ii); see Janine H. Bosley & Martha
L. Hutzelman, Qualified Plans—Taxation of Distributions,
370–3d Tax Mgmt. (BNA), at A–158. After-tax contributions
230        143 UNITED STATES TAX COURT REPORTS            (224)


that were made to an IRA cannot be rolled over. See sec.
408(d)(3)(A)(ii); see also Bosley & Hutzelman, supra, at A–
158. A rollover contribution does not result in taxation until
distribution. See secs. 72, 408(d)(3)(A).
   The instant case involves an indirect transfer. Because it
was not a direct transfer, CSRS was likely not aware that
petitioner was attempting to make a tax-free rollover con-
tribution, and there is nothing in the record to suggest that
petitioner informed CSRS of his attempt to make a rollover.
Unless it explicitly accepted rollovers, a qualified plan such
as CSRS would not be aware of the proper tax treatment of
the payment upon distribution.
   Even if CSRS accepted rollovers, section 408(d)(3)(A)(ii)
would permit it to accept as a rollover only the portion of the
IRA distribution includible in gross income. Petitioner
attempted to effect a rollover in order to make the payment
to CSRS with pretax dollars. Petitioner did not distinguish
for CSRS the extent to which the payment was made with
pre- or post-tax dollars. Petitioner’s deposit was to make up
for wage contributions which were not withheld in prior
years; those contributions would have been taxable. CSRS
does not provide for the acceptance of rollovers. Because the
payment was not accepted as a pretax contribution, it is tax-
able. See Montgomery, 18 F.3d at 500. Therefore, section
408(d)(3) does not apply and the $17,832 petitioner withdrew
from his Fidelity IRA must be included in gross income
under section 408(d)(1).
   Any contention we have not addressed is irrelevant, moot,
or meritless.
   To reflect the foregoing,
                       Decision will be entered for respondent.
 Reviewed by the Court.
 THORNTON, COLVIN, GALE, GOEKE, PARIS, LAUBER, and
NEGA, JJ., agree with this opinion of the Court.


  VASQUEZ, J., concurring: I concur with the opinion of the
Court’s holding that petitioner’s payment to the Civil Service
Retirement System (CSRS) was not a rollover. I write sepa-
rately to emphasize that this case can be resolved solely on
(224)             BOHNER v. COMMISSIONER                  231


the basis of the Office of Personnel Management’s (OPM)
authority to choose whether to accept rollovers. I also take
this opportunity to address Judge Buch’s dissent.
   I agree with the facts as laid out by the opinion of the
Court. OPM gave petitioner an opportunity to make a pay-
ment to CSRS in order to increase his annuity, as provided
by 5 C.F.R. sec. 831.303(b) (2001). See op. Ct. p. 225. Within
a two-month period, petitioner borrowed money from a
friend, made a withdrawal from his Fidelity Investments
individual retirement account (IRA), made the payment,
made a second withdrawal from the same IRA, and repaid
his friend. See id. The only question before us is whether one
or both of the withdrawals from the IRA were rollover con-
tributions to CSRS under section 408(d)(3).
   As the opinion of the Court recognizes, CSRS is a quali-
fied trust. See id. p. 228 and note 1. OPM admin-
isters CSRS. 5 U.S.C. sec. 8347(a) (2006); see also 5 C.F.R.
sec. 838.101(a)(1) (2001) (‘‘[T]he Civil Service Retirement
System * * * [is] administered by the Office of Personnel
Management[.]’’). OPM’s policy is to not accept rollovers to
CSRS. See op. Ct. p. 230. Petitioner has failed to provide any
authority requiring OPM to accept rollovers, and OPM did
not treat petitioner’s payment as a rollover. These are the
only facts necessary to decide the issue before us.
   ‘‘A trustee * * * has broad powers that are only ‘limited by
statute or the terms of the trust’ ’’. Dabney v. Commissioner,
T.C. Memo. 2014–108, at *10 (quoting 3 Restatement, Trusts
3d, sec. 85 (2007)). In Dabney, the taxpayer attempted to
invest in real property through an IRA he held with Charles
Schwab & Co., Inc. (Charles Schwab). Id. at *3. The Internal
Revenue Code does not prohibit IRAs from holding real
estate. Id. at *10. However, Charles Schwab did not permit
IRAs to purchase or hold real property. Id. at *3. We held
that, because it was the trustee or custodian of the IRA,
Charles Schwab’s policies controlled and the taxpayer would
not have been able to use his Charles Schwab IRA to hold
the real property regardless of how he had structured the
transaction. Id. at *11–*12.
   The same analysis holds true here. As the administrator of
CSRS, OPM may choose whether to accept rollover contribu-
tions to CSRS. No statute or regulation restricts OPM’s
authority to do so. OPM chose not to accept rollovers. There-
232         143 UNITED STATES TAX COURT REPORTS                      (224)


fore, petitioner’s payment to CSRS was not a rollover con-
tribution.
   In his dissent, Judge Buch raises the issue of the plain lan-
guage of section 408(d)(3). The Supreme Court has stated:
 There is, of course, no more persuasive evidence of the purpose of a
 statute than the words by which the legislature undertook to give
 expression to its wishes. Often these words are sufficient in and of them-
 selves to determine the purpose of the legislation. * * * Frequently,
 however, even when the plain meaning did not produce absurd results
 but merely an unreasonable one ‘‘plainly at variance with the policy of
 the legislation as a whole’’ this Court has followed that purpose, rather
 than the literal words. * * * [United States v. Am. Trucking Ass’ns, Inc.,
 310 U.S. 534, 543, 544 (1940); fn. refs. omitted.; quoting Ozawa v. United
 States, 260 U.S. 178, 194 (1922).]

   Under Judge Buch’s reading of the statute, neither CSRS
nor any other qualified plan or trust has the discretion to
choose whether to accept rollover contributions. I do not
believe that such an approach is reasonable or in keeping
with Congress’ intent. See H.R. Rept. No. 107–51 (Part 1), at
81 (2001) (‘‘Qualified plans are not required to accept roll-
overs.’’). The term ‘‘qualified plan’’ refers to ‘‘a plan which
satisfies the requirements of section 401(a).’’ Sec. 1.401–
0(b)(1), Income Tax Regs. As the opinion of the Court states:
‘‘CSRS is a plan that meets the requirements of sec. 401(a).’’
See op. Ct. p. 228 note 1. Qualified plans have the discretion
to decide whether to accept rollover contributions, and OPM
exercised that discretion. No further analysis is required.
   LAUBER, J., agrees with this concurring opinion.



  HALPERN, J., dissenting: I join Judge Buch’s dissent and
write separately to explain why the second distribution fails.
It fails under the statutory definition of a rollover. Mr.
Bohner made his payment into CSRS on April 27, 2010,
before he received the second distribution on May 3, 2010.
Section 408(d)(3)(A) requires that the amount received as a
distribution be paid into the eligible retirement plan no later
than 60 days after distribution. A distribution cannot be
rolled over before it is received. Judge Buch may not have
included that reason because some joining his side opinion
may have objected that that ground was not raised by
respondent. That is not necessarily a valid objection.
(224)                 BOHNER v. COMMISSIONER                             233


   A deficiency determination may be sustained upon any
legal ground that supports it, even though the grounds relied
upon by the Commissioner may have been different or
unsound. Blansett v. United States, 283 F.2d 474, 478 (8th
Cir. 1960); Metrocorp, Inc. v. Commissioner, 116 T.C. 211,
232 (2001); Smith v. Commissioner, 56 T.C. 263, 291 n.17
(1971); Wilkes-Barre Carriage Co. v. Commissioner, 39 T.C.
839, 845–846 (1963), aff ’d, 332 F.2d 421 (2d Cir. 1964); Wil-
liams v. Commissioner, T.C. Memo. 1997–326. As we said in
Barnette v. Commissioner, T.C. Memo. 1992–595, aff ’d with-
out published opinion sub nom. Allied Mgmt. Corp. v.
Commissioner, 41 F.3d 667 (11th Cir. 1994):
  It is the Court’s right and obligation to decide the case upon what it con-
  siders to be the correct application of the law, based upon the record pre-
  sented, whether the parties have properly pleaded the controlling issues
  or not. * * * [I]f the Court feels that a full and fair opportunity to
  present the facts has been given, and the Court feels that no further
  briefing on the law is necessary, the Court can go forward and decide
  the case on the record presented.

  We have sufficient facts to permit us to determine that the
second distribution fails under the statutory definition of a
rollover because it could not be rolled over before it was
received, and I believe that we are obligated to so conclude.
  HOLMES and BUCH, JJ., agree with this dissent.



   BUCH, J., dissenting: The opinion of the Court turns on the
question of whether CSRS accepts rollovers, yet in that
opinion a majority of the Court candidly states that ‘‘there is
no specific provision in the Internal Revenue Code con-
cerning whether a qualified trust must accept a rollover that
is an indirect transfer from an IRA in order to constitute an
eligible retirement plan for purposes of section 408(d)(3)’’. See
op. Ct. p. 228. They then go on to create such a rule.
   This may or may not be a good or wise rule, but that
should be irrelevant. It is not our role to act as rulemaker.
Indeed, on the same day the Court Conference considered
this Opinion, the Court of Appeals for the D.C. Circuit made
this very point: ‘‘The Tax Court is in the business of inter-
preting and applying the internal revenue laws, see Freytag,
501 U.S. at 891, not in the business of making those laws.’’
234         143 UNITED STATES TAX COURT REPORTS             (224)


Kuretski v. Commissioner, 755 F.3d 929, 943 (D.C. Cir. 2014),
aff ’g T.C. Memo. 2012–262. After noting what the statute
says (and does not say), we are to apply what is written. The
Court of Appeals for the Eleventh Circuit (where an appeal
of this case could be taken) reminded us of that earlier this
year: ‘‘The ‘preeminent canon of statutory interpretation’
requires the court to ‘presume that the legislature says in a
statute what it means and means in a statute what it says
there.’ ’’ Packard v. Commissioner, 746 F.3d 1219, 1222 (11th
Cir. 2014) (quoting Bed Rock, Ltd., LLC v. United States, 541
U.S. 176, 183 (2004)), rev’g 139 T.C. 390 (2012).
   Indeed, over the years circuit after circuit has had occasion
to remind us of this point. See Textron, Inc. v. Commissioner,
336 F.3d 26, 32 (1st Cir. 2003) (‘‘Statutory language ‘is the
most persuasive evidence of the statutory purpose’ and
should not have been avoided by the Tax Court in this case.’’
(quoting Woodral v. Commissioner, 112 T.C. 19, 22 (1999))),
rev’g 115 T.C. 104 (2000); Estate of Swan v. Commissioner,
247 F.2d 144 (2d Cir. 1957) (reversing the Tax Court for
failing to apply the plain meaning of the statute), aff ’g in
part, rev’g in part 24 T.C. 829 (1955); Zackim v. Commis-
sioner, 887 F.2d 455 (3d Cir. 1989) (reversing the Tax Court
for looking beyond the statute to a Senate report when the
language of the statute is clear), rev’g 91 T.C. 1001 (1988);
Hillman v. IRS, 263 F.3d 338, 342–343 (4th Cir. 2001)
(holding that the plain meaning rule applies unless the lit-
eral application of the statute ‘‘produces an outcome that is
demonstrably at odds with clearly expressed congressional
intent to the contrary’’ or when literal application of the
statute ‘‘produces an absurd result’’), rev’g 114 T.C. 103
(2000); Estate of Monroe v. Commissioner, 124 F.3d 699 (5th
Cir. 1997) (holding that the Tax Court incorrectly applied the
law when it interpreted a statute in a way that conflicts with
the statutory language), rev’g 104 T.C. 352 (1995); Limited,
Inc. v. Commissioner, 286 F.3d 324, 336 (6th Cir. 2002) (‘‘[I]t
is not the Tax Court’s role to inject its own policy determina-
tions into the plain language of statutes.’’), rev’g 113 T.C. 169
(1999); De Soto Sec. Co. v. Commissioner, 235 F.2d 409, 411
(7th Cir. 1956) (‘‘The courts can only interpret congressional
acts. They cannot legislate.’’), rev’g 25 T.C. 175 (1955); Estate
of Farnam v. Commissioner, 583 F.3d 581 (8th Cir. 2009)
(holding that when the language of the statute is plain and
(224)             BOHNER v. COMMISSIONER                    235


unambiguous, there is no need to look to policy consider-
ations), aff ’g 130 T.C. 34 (2008); Easson v. Commissioner,
294 F.2d 653, 657 (9th Cir. 1961) (reversing the Tax Court
for ‘‘failing to adhere to the unambiguous language contained
in the statutes in question’’), rev’g 33 T.C. 963 (1960); Haw-
kins v. Commissioner, 86 F.3d 982, 989 (10th Cir. 1996)
(holding that the Tax Court’s interpretation of the statute
was ‘‘unduly narrow’’ and ran counter to the plain meaning
of the statute), rev’g 102 T.C. 61 (1994); Matthews v.
Commissioner, 907 F.2d 1173, 1179 (D.C. Cir. 1990) (holding
that the language of the statute is ‘‘too plain to be mis-
taken’’), aff ’g 92 T.C. 351 (1989).
   And the Supreme Court has reminded us. Badaracco v.
Commissioner, 464 U.S. 386, 398 (1984) (affirming the Court
of Appeals for the Third Circuit’s reversal of the Tax Court
and stating that ‘‘[c]ourts are not authorized to rewrite a
statute because they might deem its effects susceptible of
improvement’’), aff ’g 693 F.2d 298 (3d Cir. 1982).
   We have acknowledged this point, as well. See Belk v.
Commissioner, 140 T.C. 1, 10 (2013) (‘‘When the plain lan-
guage of the statute is clear and unambiguous, that is where
the inquiry should end.’’). We often make this point in apolo-
getic tones when denying a taxpayer a tax benefit not clearly
contemplated by the Internal Revenue Code. See, e.g.,
Eichelburg v. Commissioner, T.C. Memo. 2013–269 at *7–*8
(‘‘We acknowledge that the result we reach may seem harsh.
* * * However, this Court may not rely on general equitable
principles to expand the statutorily prescribed time for filing
a petition.’’ (Citations omitted.)); Cutler v. Commissioner,
T.C. Memo. 2013–119, at *34 (‘‘While we sympathize with
her children, we must apply the law as written; it is up to
Congress to address questions of fairness and to make
improvements to the law.’’); Moody v. Commissioner, T.C.
Memo. 2012–268, at *8 (‘‘We are sympathetic to petitioner’s
plight; however, we are bound by the statute as written and
the accompanying regulations when consistent therewith.’’);
Ball v. Commissioner, T.C. Memo. 1995–520, slip op. at 13
(‘‘While the result to petitioner may seem harsh, we cannot
ignore the plain language of the statute and, in effect,
rewrite the statute to achieve what might be an equitable
result.’’).
236            143 UNITED STATES TAX COURT REPORTS                     (224)


   So with that, I would look to the law as written and apply
it to the material facts, which are fairly straightforward. Mr.
Bohner worked for the Social Security Administration and
participated in the CSRS during his years of service. After
Mr. Bohner retired, he received a letter from OPM explaining
that he could increase his CSRS retirement annuity by
remitting $17,832 to make up for years when he did not have
retirement contributions withheld. The letter required the
amount to be paid within 15 days. The letter was silent as
to whether that payment could be made through an indirect
rollover. 1
   During 2010 Mr. Bohner maintained an IRA with Fidelity
Investments. Mr. Bohner made two requests for distributions
from his IRA. Here, the chronology becomes important.
Fidelity made a first distribution of $5,000 on April 15, 2010,
withholding $500 of Federal income tax. Mr. Bohner then
borrowed money from a friend and mailed a check for the full
$17,832 to OPM for payment into CSRS on April 27, 2010.
Fidelity then made a second distribution of $12,832 on May
3, 2010. Mr. Bohner used these funds to reimburse his friend
and replenish his bank account.
   The question for us to decide under the arguments prop-
erly preserved by the parties is whether Mr. Bohner made
valid rollovers. 2
   The relevant statute is section 408(d). To begin, an IRA
distribution is taxable as provided under section 72. Sec.
408(d)(1). However, that distribution is not taxable if it is a
rollover. Sec. 408(d)(3)(A). That section sets forth the require-
ments of a rollover as follows:
  Paragraph (1) [providing that distributions are taxable] does not apply
  to any amount paid or distributed out of an individual retirement
  account or individual retirement annuity to the individual for whose
  benefit the account or annuity is maintained if—

                         *    *   *   *    *   *   *
        (ii) the entire amount received (including money and any other prop-
      erty) is paid into an eligible retirement plan for the benefit of such
      individual not later than the 60th day after the date on which the pay-

  1 Such a statement would not affect the outcome the opinion of the Court
reaches, and whether any such statement would affect the outcome under
the analysis in this dissent is not an issue before us.
  2 See op. Ct. p. 228 and note 2.
(224)                  BOHNER v. COMMISSIONER                           237


    ment or distribution is received, except that the maximum amount
    which may be paid into such plan may not exceed the portion of the
    amount received which is includible in gross income (determined with-
    out regard to this paragraph).

   CSRS is an ‘‘eligible retirement plan’’. Through a series of
cross-references, a qualified trust is an eligible retirement
plan. See secs. 408(d)(3) (flush language), 402(c)(8)(B). In
Rev. Rul. 58–472, 1958–2 C.B. 30, the IRS held that CSRS,
which was first created by the Civil Service Retirement Act
of 1920, Pub. L. No. 66–215, 41 Stat. 614, is a qualified trust
under section 401(a). Although revenue rulings are not
binding on the Court, they may serve to bind the Commis-
sioner where a longstanding revenue ruling that has not
been modified or revoked is relevant to the case before us.
Rauenhorst v. Commissioner, 119 T.C. 157, 173 (2002). The
IRS has not revoked this revenue ruling, and respondent did
not challenge CSRS’ status as a qualified trust here. Accord-
ingly, CSRS is a qualified trust and therefore an eligible
retirement plan.
   So we must see whether either of the two distributions
qualifies as a rollover. The opinion of the Court denies roll-
over treatment for both distributions in one fell swoop.
   Like the facts, the law is fairly straightforward. The
requirements for a distribution to be treated as a rollover are
found in section 408(d)(3)(A)(ii). A distribution from an IRA
will not be included in gross income if the entire amount
received from the IRA is paid into an eligible retirement plan
no later than 60 days after the date the payment is received.
Mr. Bohner received the first distribution on April 15, 2010.
Twelve days later, Mr. Bohner wrote a check exceeding the
amount of the distribution to OPM for payment into CSRS.
Accordingly, he fulfilled all of the requirements for a rollover
contribution under section 408(d)(3)(A)(ii), and the first dis-
tribution should not be included in his gross income.
   The opinion of the Court makes it abundantly clear that
there is no rule that overrides the rollover treatment allowed
under section 408. The opinion cites section 401(a)(31), which
relates to the qualification of a plan, not the tax treatment
of a rollover. 3 The opinion cites section 402, which relates to
  3 Both   the opinion of the Court and respondent cite a regulation for the
                                                Continued
238           143 UNITED STATES TAX COURT REPORTS                        (224)


rollovers from exempt trusts, not rollovers from IRAs. In fact,
the opinion does not cite any specific provision in section 402
but rather cites the legislative history of 1992 amendments
to section 402.
   In looking to analogous provisions to assist in interpreting
section 408, the opinion of the Court has done the exact
opposite of what canons of statutory construction instruct.
Canons of statutory construction encourage courts to look to
analogous provisions when resolving ambiguity in the provi-
sion under consideration. Atl. Cleaners & Dyers, Inc. v.
United States, 286 U.S. 427, 433 (1932) (‘‘Undoubtedly, there
is a natural presumption that identical words used in dif-
ferent parts of the same act are intended to have the same
meaning.’’). Where one provision contains a specific rule and
another is silent, canons of statutory construction tell us that
the omission is intentional. Rand v. Commissioner, 141 T.C.
376, 390–391 (2013). And we should interpret the provision
consistent with the omission; we do not add a rule to the
statute that Congress did not itself include.
   The strongest statutory authority the opinion of the Court
can muster is the statement ‘‘[t]he statutory provisions gov-
erning CSRS do not include a provision allowing pretax
employee contributions.’’ See op. Ct. p. 226. But the statutory
framework of CSRS also does not include a provision prohib-
iting pretax employee contributions. A review of that statu-
tory framework reveals that it is silent on the subject of its
Federal income tax treatment. 5 U.S.C. secs. 8331–8351
(2006). The only tax-related provisions within CSRS’s gov-
erning statutes relate to State taxes and withholding. Id. sec.
8345(k).
   The provisions governing the tax treatment of CSRS dis-
tributions and rollovers into the CSRS are (unsurprisingly)
found in title 26, the Internal Revenue Code. Section
408(d)(3) governs rollovers from an IRA. That provision tells
us that a rollover distribution is to be treated as income on
the contract when contributed to the new plan. Sec.
408(d)(3)(H)(ii)(II). If treated properly, that amount would be
proposition that eligible retirement plans are not required to accept roll-
overs. Sec. 1.401(a)(31)–1, Q&A–13, Income Tax Regs. The regulation is ir-
relevant because it not only addresses the qualification requirements for
a plan (an issue not before us); it also relates to accepting direct rollovers,
which are not at issue here.
(224)              BOHNER v. COMMISSIONER                    239


taxable when paid out by CSRS. Sec. 72(b) (because it is not
treated as an investment in the contract, it is not part of the
amount that is excluded from income).
   The opinion of the Court seems intent on solving a problem
that does not exist. The statutory scheme places no weight
on whether CSRS has a practice of accepting rollover con-
tributions. Indeed, the statute places no weight on a plan’s
preferences regarding accepting rollovers when determining
the taxability of a rollover distribution. The Internal Revenue
Code, however, would tax that rollover when it comes out of
CSRS. If CSRS does not properly account for that (a fact that
is not in the record), then that is a problem for those who
administer CSRS to resolve, not the Court.
   The concurring opinion cites Dabney v. Commissioner, T.C.
Memo. 2014–108, for the proposition that the trustee or
custodian of a plan can restrict the types of investments the
plan will allow, even when the statute would otherwise
permit the investment. See concurring op. p. 231. Dabney is
inapposite because the question presented to the Court was
whether the distribution at issue was either an investment
by Mr. Dabney’s IRA or a transfer between IRA trustees. Mr.
Dabney did not intend or attempt to make a rollover con-
tribution under section 408(d)(3) from one retirement account
to another; rather, Mr. Dabney attempted to change the
investments within his IRA in violation of the trustee’s
internal policies. Mr. Dabney claimed that he acquired an
investment in real property as agent for the IRA trustee;
however, he could not act as agent for the trustee where the
trustee had a policy against investing in real property. Our
approval of the IRA trustee’s right to restrict the investment
of IRA funds is not authority for the proposition that an
otherwise qualified recipient of an IRA rollover contribution
may, through its internal policies, cause the contribution not
to qualify as such. Thus the analysis in Dabney has no
bearing on the case before us.
   On the basis of the foregoing, the first distribution fulfills
the necessary requirements for a rollover contribution. As for
the second of the two Fidelity distributions, that distribution
may fail to qualify as a rollover for reasons not addressed
here.
240        143 UNITED STATES TAX COURT REPORTS            (224)


  Because Mr. Bohner complied with all the necessary steps
to make a rollover contribution as to the first distribution, I
dissent.
  HALPERN, FOLEY, HOLMES, GUSTAFSON, and MORRISON,
JJ., agree with this dissent.

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