T.C. Memo. 1998-149
UNITED STATES TAX COURT
CALVERT ANESTHESIA ASSOCIATES-PRICHA PHATTIYAKUL, M.D. P.A.,
Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18857-97R. Filed April 27, 1998.
Mark C. Kopec, Paul W. Madden, and Herman B. Rosenthal, for
petitioner.
Clare J. Brooks, for respondent.
MEMORANDUM OPINION
LARO, Judge: Respondent moves the Court to dismiss this
case for lack of jurisdiction, alleging that petitioner's
petition for declaratory judgment was not filed within the time
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prescribed in section 7476.1 Petitioner objects thereto.
Petitioner alleges that the petition was timely, and, even if it
was not, that respondent has waived the right to challenge the
timeliness of the petition, or, alternatively, that the Court
should extend the period of time in which the petition had to be
filed. Petitioner alleges that equitable considerations support
its position.
Background
Petitioner maintains a money purchase pension plan named the
Calvert Anesthesia Associates-Pricha Phattiyakul, M.D. P.A. Money
Purchase Pension Plan (the Plan). On June 13, 1997, respondent
issued petitioner by certified mail a final revocation letter
stating that the Plan did not meet the requirements of section
401(a) for its plan year ended December 31, 1991, that the trust
underlying the Plan (the Trust) was not tax exempt under section
501(a) for the same year, and that respondent was revoking a
July 29, 1987, favorable determination letter issued to
petitioner in connection with the Plan and the Trust. The reason
stated in the final revocation letter for respondent's action was
that petitioner had "failed to provide the information necessary
to determine allowable deductions under IRC Sec. 404,
1
Section references are to the applicable provisions of the
Internal Revenue Code.
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qualification under Sec. 401(a), or the financial condition and
operation of the plan."
In a petition that was hand-delivered to this Court on
September 15, 1997, and filed on that day, petitioner petitioned
the Court for a declaratory judgment as to the status of the
Plan. Thereafter, the Court filed the instant motion.
Petitioner has responded to this motion by way of an objection,
and respondent has responded to petitioner's objection.
Discussion
In Calvert Anesthesia Associates-Pricha Phattiyakul, M.D.
P.A. v. Commissioner, 110 T.C. (1998), an Opinion that we
also filed today, the same employer as the instant case
petitioned the Court for a declaratory judgment as to the status
of its profit sharing plans. The facts of that case are almost
identical with the facts of the instant case, but for the fact
that the retirement plan here is a money purchase plan.
In Calvert Anesthesia Associates-Pricha Phattiyakul, M.D.
P.A. v. Commissioner, supra, we held that section 7476(b)(5)
requires that a petition for declaratory judgment be filed within
91 days of the issuance of a final revocation letter, and that
equitable considerations do not allow us to expand on this time
period. We hold the same here. Because petitioner did not
petition the Court for declaratory judgment within this 91 day
period, we must dismiss this case.
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For the foregoing reasons,
An appropriate order
will be entered.