Footnotes

² The ACATS is a service run by the National Securities Clearing Corporation. It “automates, expedites, and standardizes procedures for the transfer of many types of securities . . . in a customer account from one brokerage firm and/or bank to another.” O ffice of the Comptroller of the Currency, Asset Management Operations and Controls 41 (2011), https://www.occ.treas.gov/publications-and-resources/publications/ comptrollers-handbook/files/asset-mgmt-ops-controls/ pub-ch-asset-mgmt-ops-controls .pdf.

³ N o regulation directly imposes such a requirement. However, if an IRA trustee or custodian cannot provide an updated fair market value of an alternative investment, it is subject to penalties. See I.R.C. § 6721(a) (imposing a penalty of $250 for “each failure” to timely file an information return or to accurately include all required information); I.R.C. § 6693(a) (imposing a $50 penalty for “each failure” to comply with certain reporting requireme nts for IRAs and other tax-favored accounts). Section 408(i) requires IRA trustees and custodians to file reports with the Secretary of the Treasury “with respect to contributions (and the years to which they relate), distributions aggregating $10 or more in any calendar year, and such other matters as the Secretary may require .” ( E mphasis added. ) S ee also Treas. Reg. § 1.408-5(b)(5) (requiring IRA trustees and custodians to report to the IRS “[s]uch other information as the Commissioner may require”). The 2014 Instructions for Forms 1099 – R and 5498, at 20, directed IRA trustees and custodians to report the 2014 yearend fair market value of “[a]ssets held in an IRA that are not readily tradable on an established US or foreign securities market or option exchange, or that do not have a readily available [fair market value].”

¹ Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C. or Code) , in effect at all relevant times, regulation references are to the Code of Federal Regulations , Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.

⁴ This tax return has PBSM’s address listed as Mr. Caan’s home address.

⁵ $2,299,567 – $388,66 4 = $1,910,9 0 3.

⁶ In a Stipulation of Settled Issues dated April 13, 2021, the parties agreed that the Estate of James E. Caan (Estate) is not liable for the section 6662(a) accuracy -related penalty.

⁷ Under section 7491(a), the burden of proof shifts to the Commissioner with respect to a factual issue where the taxpayer (1) produced credible evidence regarding that issue; (2) complied with the Code’s substantiation and record- keeping requirements; and (3) complied with the IRS ’s reasonable requests for information. See also Higbee v. Commissioner, 116 T.C. 438, 440 – 41 (2001). The Estate does not contend that section 7491(a) applies, so we do not consider it here.

⁸ Section 408(a)(2) requires the trustee to be a “a bank . . . or such other person who demonstrates to the satisfaction of the Secretary that the manner in which such

⁹ The first and third attributes are not shared by Roth IRAs . S ee I.R.C. § 408A. The IRAs at issue are not Roth IRAs.

¹⁰ This limitation does not apply to trustee-to-trustee transfers such as transfers through ACATS, because IRA assets are directly transferred from one IRA trustee or custodian to another IRA trustee or custodian. See Rev. Rul. 78- 406, 19782 C.B. 157; see also Bobrow v. Commissioner, T.C. Memo. 2014-21, at *13 n.5. Such transfers do not result in a distribution within the meaning of section 408(d)(3)(A) because the IRA assets transferred are not within the direct control or use of the taxpayer. See Rev. Rul. 78-406, 1978- 2 C.B. 157; see also Bobrow , T.C. Memo. 2014 -21, at *13 n.5.

¹¹ The P&A Interest is a partnership interest, which means that UBS served two roles: (1) it was the P&A Interest’s custodian, a role governed by a custodial agreement, and (2) it was a partner in a partnership, a role governed by relevant state law and/or a partnership agreement. The parties stipulated the custodial agreement (which we admitted into evidence), but neither party attempted to introduce a partnership agreemen t n or any evidence indicating which state’s partnership law applied. Normally, we would examine the partnership agreement’s text and the relevant state’s partnership or property law to decide whether the December 2015 confirmation letter indeed placed Mr. Ca an in constructive receipt of the P&A Interest.

¹² In Lemishow , 100 T.C. at 111, the taxpayer had maintained Keogh plans (which generally allow larger annual contributions than do IRAs but must be funded only with income earned through self- employment, see I.R.C. §§ 402(c), 415) and IRAs with two different banks. He requested cash distributions from both account types, which he then used to purchase stock. Lemishow , 110 T.C. at 111. He then opened an IRA with Smith Barney Shearson and contributed the stock to that IRA. Id. at 111 – 12. Distributions from Keogh plans are governed by section 402, while distributions

¹³ An employees’ trust is a “trust created or organized in the United States” that is “part of a stock bonus, pension, or profit-sharing plan of an employer for the exclusive benefit of his employees or their beneficiaries.” I.R.C. § 401(a).

¹⁴ Walquist v. Commissioner, 152 T.C. 61, 67 (2019); see also Weimerskirch v. Commissioner , 596 F.2d 358, 362 (9th Cir. 1979), rev’g 67 T.C. 672 (1977). Only once the Commissioner makes the required threshold showing does the burden shift to the taxpayer, to prove by a preponderance of the evidence that the Commissioner’s determinations are arbitrary or erroneous. Walquist , 152 T.C. at 67– 68. However, this case does not involve unreported income. UBS issued Mr. Caan a Form 1099 – R, reporting a distribution of the P&A Interest to the IRS. Mr. Caan likewise reported a distribution of the P&A Interest on his 2015 income tax return, and he claime d that the distribution was nontaxable. This fact defeats the Estate’s contention that the deficiency determination involves unreported income. The IRS did not determine that Mr. Caan failed to report a distribution of the P&A Interest; it merely disagreed with his claim that the distribution was nontaxable. Thus, the rule enunciated in Walquist does not apply here. Although this case is not based on unreported income, it is based on an information return. Section 6201(d) provides: In any court proceeding, if a taxpayer asserts a reasonable dispute with respect to any item of income reported on an information return filed with the Secretary [of the Treasury] . . . by a third party and the taxpayer has fully cooperated with the Secret ary . . . the Secretary shall have the burden of producing reasonable and probative information concerning such deficiency in addition to such information return. The Estate reasonably challenges the accuracy of UBS’s Form 1099 – R. However, reasonable evidence in the record support s the Commissioner’s determination that a taxable distribution of the P&A Interest occurred (in particular, the series of correspondence from UBS to Mr. Caan). The Commissioner has therefore met his burden of production under section 6201(d). Accordingly, the Estate continues to bear the burden of proving that the Commissioner erred in determining that a taxable distribution occurred. II. IRAs The Estate argues that UBS never distributed the P&A Interest to Mr. Caan. It also argues that, even if UBS did distribute the P&A Interest, Mr. Caan contributed it to his Merrill Lynch IRA in a manner

¹⁵ that would qualify as a nontaxable rollover contribution under section 408(d)(3). We will first discuss the legal background governing IRAs and then decide the merits of these two arguments. A. What Is an IRA? Section 408 is the main Code provision governing IRAs. It was enacted as part of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93- 406, § 2002(b), 88 Stat. 829, 959, in furtherance of Congress’ s goal “to create a system whereby employees not covered by qualified retirement plans would have the opportunity to set aside at least some retirement savings on a tax-sheltered basis . ” Campbell v. Commissioner, 108 T.C. 54, 63 (1997) ; s ee also Orzechowski v. Commissioner, 69 T.C. 750, 754 – 56 (19 78) , aff’d , 592 F.2d 677 (2d Cir. 1979). Section 408(a) provides that an IRA is “a trust created or organized in the United States for the exclusive benefit of an individual or his beneficiaries, but only if the written governing instrument creating the trust meets the [requirements enumerated i n paragraphs (1) through (6)].” See also Treas. Reg. § 1.408-2(b) (explaining those enumerated requirements in further detail). Section 408(h) further provides that for purposes of section 408: a custodial account shall be treated as a trust if the assets of such account are held by a bank (as defined in subsection (n)) or [an IRS - approved non-bank entity], and if the custodial account would, except for the fact that it is not a trust, constitute an individual retirement account described in subsection (a). For purposes of [the Code], in the case of a custodial account treated as a trust . . . the custodian of such account shall be treated as the trustee thereof. See also Treas. Reg. § 1.408-2(d). Thus, in enacting section 408, Congress gave taxpayers a choice as to the form of their IRA: a trust IRA or a custodial IRA. A trust IRA is, at its core, a trust. The taxpayer is the settlor, a bank (or an approved nonbank entity)

¹⁶ (initially the settlor) is the beneficiary. The settlor executes a written trust instrument that meets the section 408(a) requirements and thereby establishes a trust IRA. A custodial IRA is established by the dual operation of section 408(a) and (h) and is not a trust but a custodial relationship between the taxpayer and an IRS - approved custodian. See, e.g. , Walsh v. Benson , No. 05-290J, 2006 U.S. Dist. LEXIS 59251, at *8– 11 (W.D. Pa. Aug. 18, 2006) (concluding that a qualifying custodial account is merely treated as a trust for purposes of section 408(a)). To form a custodial IRA, the taxpayer executes a written custodial agreement that meets the requirements enumerated in section 408(a)(1) through (6). Once the custodial agreement is executed, section 408(h) treats the custodial agreement as a trust instrument and the custodian as a trustee, which allows for section 408(a) to apply, thereby creating a custodial IRA. There is a practical difference between trust IRAs and custodial IRAs, as the U.S. District Court for the Western District of Missouri explained: The practical difference between “a trust as IRA” and “a custodial account as IRA” involves the duties of the financial institution where the IRA is created. If the IRA is a trust, the institution has a fiduciary responsibility with respect to the investm ent. If the IRA is a custodial account, the institution’s duty is to hold and safeguard the investment; there is no duty with respect to investment decisions. The practical distinction is that a custodial account’s investment decisions can be dictated by the IRA owner/beneficiary. United States v. Stover, 731 F. Supp. 2d 887, 901 (W.D. Mo. 2010), aff’d , 650 F.3d 1099 (8th Cir. 2011). T rust IRAs and custodial IRAs have the same three tax attributes, which together constitute the tax-deferral system that

¹⁷ Congress created: (1) cash contributions are generally deductible; (2) accretions from the IRA’s assets are not taxable (except for section 511 unrelated business income); and (3) distributions are taxable.

¹⁸ taxpayer cannot change the character of the noncash property. Taxpayers are also limited to one nontaxable rollover of an IRA distribution per one-year period, whether it be a full or partial rollover. I.R.C. § 408(d)(3)(B).

¹⁹ did not respond to that letter, leading UBS to send him a notice that the P&A Interest would be distributed and later a confirmation letter that the interest was distributed as of November 25, 2015. The confirmation letter also explained the definite and potential consequences of UBS’s resignation as the P&A Interest’s custodian, including that UBS would issue Mr. Caan a Form 1099– R reporting a distribution. These letters show that UBS went above and beyond what the custodial agreement required of it. It had no obligation to contact the P&A Fund to obtain the P&A Interest’s 2014 yearend fair market value, yet it did so on Mr. Caan’s behalf. It also sent Mr. Caan a request for that value and gave him over 30 days to respond. Although the onus was on Mr. Caan to provide UBS with the P&A Interest’s 2014 yearend fair market value, UBS nevertheless tried to help him in fulfilling his duties under the custodial a greement. After receiving no response to its multiple requests, UBS acted well within its rights under the custodial agreement by resigning as the P&A Interest’s custodian and distributing the P&A Interest in kind. It even went further by recommending th at Mr. Caan contact his tax advisor, reminding him of the 60-day rollover period, and providing him with the names of two firms willing to serve as custodians of the P&A Interest. We therefore determine that UBS distributed the P&A Interest to Mr. Caan on November 25, 2015. The Estate argues that UBS’s distribution of the P&A Interest was a “phantom distribution,” alleging that UBS resigned as the P&A Interest’s custodian —and purported to “distribute” the interest — without notifying Mr. Caan, PBSM, or Mr. Margiotta. The Estat e further alleges that UBS merely generated, without actually mailing, the letters that requested the P&A Interest’s 2014 yearend fair market value and only later notified Mr. Caan of a purported distribution. In support of this argument, the Estate reli es heavily on the trial testimony of Ms. Cohn and Mr. Margiotta. Both witnesses testified that they had never seen the relevant letters from UBS until this litigation had begun and had not known about UBS ’s making the distribution. We do not find that portion of either witness’ testimony credible. As the trier of fact, we may credit testimony in full, in part, or not at all. See Neonatology Assocs. , P.A. v. Commissioner, 115 T.C. 43, 84 (2000), aff’d , 299 F.3d 221 (3d Cir. 2002). In this instance, the letters were produced in a logical order, each referencing the prior one, and they were all maintained by UBS in its files. The last of the letters, which discussed the in-kind distribution, was follow ed by the promised Form

²⁰ 1099– R; moreover, all further IRA account statements from UBS ceased. We find it highly unlikely that PBSM received all mail from UBS — statements, the Form 1099 – R, and other correspondence —except for the key letters (which were addressed to PBSM). Additio nally, the March 2016 email between Ms. Cohn and Mr. Margiotta suggests that both of them knew of UBS’s representations that it had distributed the P&A Interest. It seems far more likely that there was simply a lack of communication and coordination betwe en the professionals overseeing Mr. Caan’s affairs, especially given the timing of UBS’s letters, Mr. Margiotta’s move from UBS to Merrill Lynch, and the emails between Mr. Margiotta and Ms. Cohn. If all parties believed that UBS was still the P&A Interes t’s custodian, why did no one follow up with UBS when it ceased to mail account statements for the IRAs ? And why, if everyone was indeed blindsided by the Form 1099 – R, did no one promptly follow up with UBS regarding it? (That followup did not occur unti l after the IRS issued its Form CP2000.) The Estate has offered no satisfactory explanation to fill these holes in its theory. The Estate further argues that no distribution occurred because Mr. Caan was never placed in actual or constructive receipt of the P&A Interest. We disagree. Under t he constructive receipt doctrine “funds [or other property] which are subject to a taxpayer’s unfettered command and which he is free to enjoy at his option are constructively received by him whether he sees fit to enjoy them or not.” Estate of Brooks v. Commissioner, 50 T.C. 585, 592 (1968); see also Corliss v. Bowers, 281 U.S. 376, 378 (19 30); Treas. Reg. § 1.451-2(a). UBS’s December 2015 confirmation letter asked Mr. Caan to contact the P&A Fund and “instruct them to re-register the [P&A Interest] into [his] individual name.” We understand that sentence of the letter to mean that, begi nning on November 25, 2015, Mr. Caan could have presented that letter to the P&A Fund and instructed it to re-register the P&A Interest in his name without needing any further involvement from UBS.

²¹ an IRA managed by any other custodian or trustee willing to accept it. The presence of these options means that Mr. Caan had unfettered control over the P&A Interest and was therefore in constructive receipt of it. Lastly, the Estate attempts to discredit UBS’s resignation by contending that no resignation or distribution occurred under California trust law. This argument is a nonstarter for two reasons: (1) Mr. Caan’s relationship with UBS was a custodial relation ship, not a trust relationship, and (2) the custodial agreement states that it is governed by New York law, not California law. B. Was the P&A Interest Contributed in a Manner That Would Qualify as a Rollover Contribution Under Section 408(d)(3)? Section 408(d)(3)(A)(i) provides that an IRA distribution is not taxable if “the entire amount received (including money and any other property)” is contributed into another IRA within 60 days of the distribution. The taxpayer may not change the character of any noncash distrib uted property between the time of the distribution and the time of the contribution. See Lemishow , 110 T.C. at 113; Treas. Reg. § 1.4084(b)(1). In the previous section, we determined that UBS distributed the P&A Interest to Mr. Caan on November 25, 2015. Sixty days from that date was January 24, 2016. Since the latter date was a Sunday, the 60day deadline was extended to “the next succeeding day which is not a

²² Saturday, Sunday, or a legal holiday.” I.R.C. § 7503. Thus, Mr. Caan had until January 25, 2016, to contribute the P&A Interest to another IRA. We acknowledge that Mr. Caan executed a request in October 2015 to transfer all assets in his two UBS IRAs to Merrill Lynch and that all assets other than the P&A Interest were transferred through ACATS shortly thereafter. Troublesome here is how the P&A Interest was handled. Mr. Margiotta (acting on Mr. Caan’s behalf) submitted a withdrawal request to the P&A Fund in December 2016, asking it to fully liquidate the P&A Interest and remit the proceeds directly to the Merrill Lynch IRA. This action occurred over a year after the UBS distribution. The P&A Fund then remitted a total of $1,532,605.46 in three separate wire transfers between January 23 and June 21, 2017. There are three problems with the way the P&A Interest was handled. First, and most importantly, in liquidating the P&A Interest Mr. Caan changed the character of the property; yet section 408(d)(3)(A)(i) required him to contribute the P&A Interest itsel f, not cash, to another IRA in order to preserve its tax-deferred status. See Lemishow , 110 T.C. at 113; Treas. Reg. § 1.408-4(b)(1). Second, the contribution of the cash proceeds from the liquidation occurred long after the January 25, 2016, deadline. And finally, the P&A Fund’s three transfers to the Merrill Lynch IRA constituted three separate contributions; yet section 408(d)(3)(B) allows for only one rollover contribution in any one-year period, making only the first transfer potentially eligible for a tax-free rollover. As discussed supra p p . 17 – 18, our caselaw and the regulations have interpreted section 408(d)(3)(A)(i) to require the same money or the same property to be transferred in a rollover, rather than merely similar property or property of equivalent value. See Lemishow , 110 T.C. at 113; Treas. Reg. § 1.408-4(b)(1). In Lemishow , we discussed the legislative history supporting this interpretation:

²³ Both rollover provisions [viz, section 408(d)(3) and section 402(c), the latter of which governs rollovers from employment-based tax-deferred plans, see I.R.C. § 401, to any of a number of tax-deferred plans, including IRAs] were enacted as part of the Employee Retirement Income Security Act of 1974, Pub. L. 93- 406, sec. 2002(b), (g)(5), 88 Stat. 829, 959– 964, 968– 969. The purpose of allowing a tax-free rollover from a retirement plan to an IRA was to facilitate portability of pensions. Conf. Rept. 93-128 0 (1974), 1974- 3 C.B. 415, 502; H. Rept. 93-807 (1974), 19743 C.B. (Supp.) 236, 265. The purpose of the IRA - to - IRA transfers was to permit flexibility with respect to the investment of an IRA. H. Rept. 93-807, supra, 1974- 3 C.B. (Supp.) at 374; S. Rept. 93- 383 (1973), 1974-3 C.B. (Supp.) 80, 214. With respect to rollovers, the legislative history repeatedly speaks in terms of “this same money or property” and “the same amount of money (or the same property)”, both f or distributions from an IRA and from a qualified plan. H. Rept. 93- 807, supra, 1974- 3 C.B. (Supp.) at 374 – 375; Conf. Rept. 93-1280, supra, 1974- 3 C.B. at 502. [Treas ury Reg ulation § 1.408-4(b)], describing rollovers from IRA to IRA, uses the language “if the entire amount received (including the same amount of money and any other property) is paid into an” IRA. Based on the language of the statutory provisions and the legislative history of those provisions, we hold that petitioner’s use of the [cash] distributions from his Keogh and IRA’s [sic] to purchase stock which he then contributed to the Smith Barney IRA does not constitute a tax-free rollover contribution under section 402(c) or 408(d)(3), respectively. Lemishow , 110 T.C. at 113 (footnotes omitted). Section 402, however, is distinct from section 408 in that Congress enacted a limited exception to the “same property” rule in the Revenue Act of 1978, Pub. L. No. 95-600, § 157(f)(1), 92 Stat. 2763, 2806– 07. Thus, section 402(c)(6) allows for property to be sold and the

²⁴ proceeds to be contributed to an IRA in a tax-free rollover, whereas there is no similar exception for IRAs governed by section 408. Congress enacted section 402(c)(6) as a means to address a perceived hardship for those taxpayers attempting to roll over investments from section 401 qualified plans but having difficulty finding a trustee willing to accept property in kind. See Staff of J. Comm . on Tax’n, 95th Cong., General Explanation of the Revenue Act of 1978, JCS- 7-79, at 110 (J. Comm. Print 1979). H owever, Congress did not enact an analogous provision for IRAs. We are unsure why Congress sought to alleviate this hardship for section 401 qualified plans without making a parallel fix for IRAs. However, our job is to apply the terms of statutes, not r evise or update them. United Therapeutics Corp. v. Commissioner, No. 10210- 21, 160 T.C., slip op. at 26 (May 17, 2023) (citing Wis. Cent. Ltd. v. United States , 138 S. Ct. 2067, 2074 (2018)). And when Congress includes certain language in one provision b ut omits it in another, we presume that the inclusion and exclusion are intentional. See Loughrin v. United States, 573 U.S. 351, 358 (2014) (“We have often noted that when ‘Congress includes particular language in one section of a statute but omits it in another’ —let alone in the very next provision —this Court ‘presume[s]’ that Congress intended a difference in meani ng.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983))); see also Henson v. Santander Consumer USA Inc. , 582 U.S. 79, 85 – 86 (2017) (same). The text of section 408(d)(3)(A)(i), the legislative history behind section 408(d)(3), our caselaw, and the regulations all make clear that Mr. Caan was required to contribute the P&A Interest, not cash, to the Merrill Lynch IRA in order to preserve its tax-deferred s tatus. Because he did not do so, we hold that the cash proceeds from the liquidation of the P&A Interest were not contributed in a manner that would qualify as a nontaxable rollover contribution under section 408(d)(3)(A)(i). C. What I s the 2014 Yearend Fair Market Value of the P&A Interest? On the Form 1099 – R that reported to the IRS the distribution of the P&A Interest, UBS claimed that the value of the P&A Interest was $1,910,903, which was the 2013 yearend fair market value. The Estate generally argues that that Form 1099 – R is incorrect because UBS never distributed the P&A Interest and the value it reported was erroneous. The Commissioner agrees with the Estate that the P&A Interest was misvalued. He ur ges us to adopt a value of $1,548,010, which was the ending capital account balance reported by the P&A Fund on Schedule K – 1, Partner’s Share of Income, Deductions, Credits, etc., for tax year

²⁵ 2015. He believes that the 2015 ending capital account balance serves as the best approximation of the P&A Interest’s value at the time of the distribution because the distribution occurred on November 25, 2015, and the ending capital account balance was Mr. Caan’s capital account balance as of December 31, 2015. In its briefs, the Estate does not argue against the Commissioner’s proposal, focusing instead on arguing that the Form 1099– R is “a useless, inaccurate, [and] unreliable document.” Since the value the Commissioner proposes closely matches the aggregate 2017 liquidation amount of $1,532,605.46, and since the Estate does not propose a different value, we hold that the value of the P&A Interest at the time of the distribution was $1,548,010. D. Did the IRS Err in Not Granting a Waiver of the 60 - Day Rollover Period Under Section 408(d)(3)(I)? Three days before filing the Petition, Mr. Caan sent a private letter ruling request to the IRS, asking it to waive the 60-day rollover period. See I.R.C. § 408(d)(3)(A)(i), (I); Rev. Proc. 2003-16, 2003- 1 C. B. 359 (prescribing the procedures by which taxpayers may request a waiver under section 408(d)(3)(I)). After considering the request, the IRS declined to issue a private letter ruling on the grounds that waiving the 60-day rollover period would be inconsequent ial, in light of the same property requi rement. Mr. Margiotta (acting on Mr. Caan’s behalf) liquidated the P&A Interest and contributed the cash proceeds to the Merrill Lynch IRA. In so doing, Mr. Caan ran afoul of the same property requirement. See supra pp. 2 1 – 24. Thus, the IRS reasoned that even if it were to grant a waiver of the 60-day rollover period, the cash contribution to the Merrill Lynch IRA could not be respected as a rollover contribution, since the IRS cannot waive the same property requirement. The Estate disagrees with the I RS’s reasoning, contending that a waiver under section 408(d)(3)(I) should have been granted given the facts and circumstances of this case. Section 408(d)(3)(I) provides that the IRS “may waive the 60-day requirement . . . where the failure to waive such requirement would be against equity or good conscience, including casualty, disaster, or other events beyond the reasonable control of the i ndividual subject to such requirement.” The parties’ disagreement over whether the IRS appropriately declined to issue a waiver under section 408(d)(3)(I) presents two antecedent questions: (1) Does our Court have jurisdiction to review such a denial, and (2) if we do have jurisdiction, what is our

²⁶ standard of review? These are both questions of first impression for our Court. 1. Jurisdiction to Review Denials of Waivers Under Section 408(d)(3)(I) and Standard of Review In Trimmer v. Commissioner, 148 T.C. 334, 345– 49 (2017), we considered similar questions in a case similar to this one. Trimmer concerned section 402, which governs distributions from a qualified plan known as an employees’ trust.

²⁷ The IRS summarily denied the request in a boilerplate response. See id. at 338– 39. In deciding that we had jurisdiction to review the IRS’s denial of a hardship waiver under section 402(c)(3)(B), we stated: Nothing in section 402(c)(3) expressly precludes judicial review, nor does the legislative history reveal any such congressional intent. To the contrary, because the denial of a hardship waiver can affect directly the existence and amount of any asserted deficiency —as it does in this case —the procedures Congress has established for judicial review of the Commissioner’s deficiency determinations logically contemplate review of such a denial as one element of the deficiency determination. Trimmer, 148 T.C. at 346 – 47 (footnote omitted) (citing Estate of Gardner v. Commissioner, 82 T.C. 989, 996 (1984)). We therefore concluded that our jurisdiction to redetermine deficiencies under section 6213(a) includes jurisdiction to review any discretionary agency actions that would affect the deficiency amount. Trimmer, 148 T.C. at 348; Estate of Gardner, 82 T.C. at 999. We also concluded , on the basis of our prior caselaw, that the appropriate standard of review is abuse of discretion. Trimmer, 148 T.C. at 348. Our reasoning in Trimmer applies here as well. Sections 402(c)(3)(B) and 408(d)(3)(I) are worded identically. Neither the text of section 408(d)(3) nor its legislative history precludes judicial review; and whether the Commissioner grants a waiver under section 408(d)(3)(I) is a discretionary determination that would affect a taxpayer’s deficiency. We therefore extend our holding in Trimmer, 148 T.C. at 345 – 49, to denials of waivers under section 408(d)(3)(I). In other words, we hold that we do have jurisdiction to review the Commissioner’s denial of a waiver under section 408(d)(3)(I) and that we review such a denial for abuse of discretion. See Trimmer, 148 T.C. at 348; Mailman v. Commissioner, 91 T.C. 1079, 1084 (1988) (“The standard of review most appropriate in the case of a failure to grant a waiver is . . . whether [the Commissioner] abused his discretion.”); Estate of Gardner, 82 T.C. at 1000; see also 5 U.S.C. § 706(2)(A) (providing that generally a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

²⁸ 2. Did the Commissioner Abuse His Discretion in Declining to Waive the 60 - Day Rollover Period Under Section 408(d)(3)(I)? As we explained above, the IRS declined to issue a waiver under section 408(d)(3)(I) because Mr. Caan liquidated the P&A Interest after the distribution from UBS and, in so doing, ran afoul of the same property requirement, see I.R.C. § 408(d)(3)(A)(i); Lemishow , 110 T.C. at 113, which the IRS cannot waive. We hold that denying a waiver on that basis is not an abuse of discretion. It cannot be an abuse of discretion for the IRS to deny a waiver where granting the waiver would not have helped the taxpayer in any way. The Estate urges us to adopt an equitable resolution to this case. Although we are sympathetic to the Estate’s situation, we are not a court of equity, and we cannot ignore the statutory law to achieve an equitable end. See Commissioner v. McCoy , 484 U.S. 3, 7 (1987); Stovall v. Commissioner, 101 T.C. 140, 149 – 50 (1993). This case is a quintessential example of the pitfalls of holding nontraditional, non -publicly traded assets in an IRA. Failure to follow the labyrinth of rules surrounding these assets can mean forfeiting their tax-advantaged status. IV. Conclusion We hold that the P&A Interest was distributed in tax year 2015 within the meaning of section 408(d)(1). We further hold that Mr. Caan did not thereafter contribute the P&A Interest in a manner that would qualify as a nontaxable rollover contribution under section 408(d)(3), because he changed the character of the property when he liquidated the P&A Interest. We agree with the Estate that UBS misvalued the P&A Interest, and we hold that its value was $1,54 8,010 at the time of the distribution. But we disagree with the Estate that the Commissioner abused his discretion in declining to issue a waiver of the 60-day rollover period, as such a waiver would not have helped Mr. Caan in this case. We have considered all of the arguments made by the parties and, to the extent they are not addressed herein, we consider them moot, irrelevant, or without merit. To reflect the foregoing, Decision will be entered under Rule 155.