dissenting: I agree with the majority that respondent did not abuse his discretion under section 1.415-6(b)(6)(i), Income Tax Regs. I also agree that the period of limitations on assessment under section 6501(a) bars assessment of a tax deficiency for the year 1980 but not the year 1979. I disagree, however, with the majority’s holding that petitioner is disqualified under section 401(a) for the years 1982 and 1983 solely because annual additions exceeding the limitation of section 415(c) were made to a participant’s account for the years 1979, 1980, and 1981. Unlike the majority, I submit that section 415 is intended by Congress to apply automatically on a year-by-year basis and to cause disqualification of a trust only in the “year” for which an excess contribution is made.
The Statutory Scheme
Section 415 imposes an annual limitation on contributions and other additions to the account of each participant in a defined contribution plan. The limitation is formulated in terms of the “annual addition” to a participant’s account, defined to mean “the sum for any year of — (A) employer contributions, (B) the employee contributions, and (C) forfeitures.” Sec. 415(c)(2). Under section 415(c), the annual addition to a participant’s account in a defined contribution plan cannot exceed the lesser of a specified dollar amount or 25 percent of the participant’s compensation. This limitation applies on an overall basis to all contributions and other additions for a particular employer under all of the plans and accounts in which the employee is a participant. See secs. 415(f) and 415(g).
It is clear that the annual limitation set out in section 415(c) is intended to be applied on a year-by-year basis.1 It contains no mechanism to take into account employer contributions, employee contributions, or forfeitures made for a year other than the “year” for which the limitation is computed. This is confirmed by the detailed legislative regulations promulgated thereunder. Sec. 1.415-6, Income Tax Regs.
The statutory scheme for application of such limitation is also clear. On one hand, section 401(a)(16) denies qualification to a trust forming part of a defined contribution plan if the written terms of the plan “provide for” contributions in excess of such limits. Any defect in form requires disqualification of the trust for so long as the defect remains in the plan and regardless of whether any excess contributions are actually made under its terms. No defect in form is involved in this case, and so the majority errs when it states that “section 401(a)(16) sets forth the requirement in issue in the instant case.” (Majority opinion at p. 1179.) See also the majority’s reference to “enforcement of section 401(a)(16).” (Majority opinion at p. 1187.)
On the other hand, it is section 415(a)(1)(B) which disqualifies the trust if the section 415(c) limitation is exceeded by the contributions actually made in operation of the plan. It is this limitation on the operation of the plan—and the sanction provided by section 415(a)(1)(B)—which is in issue.
In this case, annual additions consisting of employer contributions were made to the account of one participant, Mr. Martin, for each year 1979, 1980, and 1981. Each annual addition exceeded the applicable limitation under section 415(c) and, therefore, petitioner does not constitute a qualified trust or an organization exempt from tax for each such year. Sec. 415(a)(1)(B) and sec. 501(a).
For the years 1982 and 1983, no employer contribution was allocated to Mr. Martin’s account nor was any other addition made to his account. There was, accordingly, no “annual addition,” as that term is defined by section 415(c)(2), to Mr. Martin’s account for either year and, by definition, there could be no annual addition for either year in excess of the limitation of section 415(c). There is, accordingly, no basis for finding that in either 1982 or 1983 petitioner did “not constitute a qualified trust under section 401(a)” pursuant to the provisions of section 415(a)(1)(B). Because respondent based his determination in this case exclusively on the application of section 415, I would hold that his determination is incorrect with respect to both 1982 and 1983.
Unlike the majority, I believe that the Congressional intent “to prevent the accumulation of corporate pensions out of tax-sheltered dollars” is enforced under section 415 by disqualification of the plan for the year in which an operational violation takes place. Disqualification not only has the effect of subjecting the trust to tax, such as determined by respondent in this case, but it can also cause all plan participants to be subject to current tax on the employer’s contribution, see section 1.402(b)-l, Income Tax Regs., or cause the employer to lose its deduction with respect to contributions to the plan, see section 1.404(a)-12, Income Tax Regs. Indeed, loss of qualification for the year is no less severe because the excess addition is made to the account of only one participant, as in this case. All participants are subject to current taxation with respect to their accounts, not just the participant into whose account the excess additions were made, and the employer loses a current deduction for the full contribution, not just the excess portion allocated to one account.
I find nothing in the language of section 415 or its legislative history to suggest that disqualification of the plan due to an operational violation in one “year” was intended to cause disqualification for any other “year.” To the contrary, section 415 is an annual test applied on a year-by-year basis, and there is nothing in section 415 to cause the test results from one year to be taken into account for any other year.
Treasury Regulations Promulgated Under Section 415
Treasury regulations confirm that disqualification is required only in the “year” for which the limitations of section 415 are exceeded. Pursuant to the specific rule-making authority contained in section 415(j), the regulations define the concept “limitation year,” section 1.415-2(b), Income Tax Regs., and require that the “annual additions” made to each participant’s account be tested on an overall basis for each limitation year against the section 415 limits. Sec. 1.415-6, Income Tax Regs.
The regulations provide, in the case of a single defined contribution plan, that, if excess annual additions are made to the account of any participant “for any particular limitation year,” the plan is “disqualified in that limitation year.” Section 1.415-9(b)(2), Income Tax Regs., states as follows:
if the employer only maintains a single defined contribution plan under which annual additions (as defined in section 1.415-6(b)) allocated to the account of any participant exceed the limitations of section 415(c) and section 1.415-6 for any particular limitation year, such plan is also disqualified in that limitation year. [Emphasis supplied.]
The regulations thus conform to the statute and require disqualification of the plan in the “limitation year” in which an operational violation of section 415 takes place. They do not address the effect of disqualification for a particular limitation year on any other limitation year because other limitation years are tested independently under section 415 based upon the “annual additions” made with respect to each such year. This is further confirmed by section 1.415-9(a)(l), Income Tax Regs., which provides that a defined contribution plan is disqualified “with respect to a particular limitation year” if the following “condition” exists:
Annual additions (as defined in section 1.415-6(b)) with respect to the account of any participant in a qualified defined contribution plan maintained by the employer exceed the limitations of section 415(c) and section 1.415-6.
Significantly, the above regulation does not provide that the existence of excess annual additions from a prior limitation year is a “condition” requiring disqualification.
The majority’s analysis of the regulations focuses on section 1.415-9(b)(1), Income Tax Regs., which deals with the possibility that a plan may have a “plan year” which is different from the “limitation year” defined by the regulations. In that case, the regulations remove any uncertainty about the scope of disqualification by providing that the plan is “disqualified as of the first day of the first plan year containing any portion of the particular limitation year.' Sec. 1.415-9(b)(l), Income Tax Regs. Disqualification of the plan “as of” the beginning of the first “plan year” does not reasonably imply, as the majority concludes, that the regulations require “indefinite” disqualification if an excess annual addition is made for a particular “limitation year.”
The purpose of that regulation is to make it clear that disqualification for a particular limitation year will implicate whatever plan years are involved, “as of the first day of the first plan year.” The rule is essential in those cases where the limitation year differs from the plan year, and it is specifically contemplated by the grant of authority to the Secretary of the Treasury in section 415(j) to define the term “year.” Unlike the majority, I find nothing “unworkable” or “arbitrary” about this rule. (Majority opinion at 1188.) In any event, it is undeniable that the regulations limit disqualification for a section 415 violation to “a particular limitation year.” Accordingly, where the limitation year is coincident with the plan year, as in this case, disqualification is limited to the “year” in which section 415 is violated.
The majority’s treatment of the regulation, on the other hand, is both inconsistent and confusing. At first, it finds “a fair, if not strong, inference” that the regulation requires “indefinite” disqualification of a plan following a section 415 violation, based upon the words “as of” contained in section 1.415-9(b)(1), Income Tax Regs., as discussed above. (Majority opinion at 1187.) That position, however, leads to the clearly erroneous conclusion that the plan must be permanently disqualified. Apparently, the inference of indefinite disqualification is not sufficiently strong to even take into account, because the majority later concludes that the regulations are either not “dispositive” or “do not address” the issue before the Court. (Majority opinion at 1187-1188.) Finally, the majority compounds the confusion by citing Iglesias v. United States, 848 F.2d 362 (2d Cir. 1988), a case in which regulations were invalidated as contrary to the statute and Congressional intent. (Majority opinion at 1187-1188.) In the final analysis, the reader can tell that the majority has brushed the regulations aside, but cannot tell precisely why.
The Majority’s Version of Section 415
It is noteworthy that the majority does not contend that an annual addition in excess of the limitation of section 415(c) was made for either 1982 or 1983. Rather, the majority bases its position that petitioner is disqualified for 1982 and 1983 entirely on an erroneous reading of section 415(a)(1)(B). That provision states that a trust forming part of a defined contribution plan “shall not constitute a qualified trust under section 401(a) if— * * * contributions and other additions under the plan with respect to any participant for any taxable year exceed the limitation of subsection (c).” Sec. 415(a)(1)(B). (Emphasis supplied.)
The majority seizes upon and misreads the phrase “any taxable year” to justify its position that petitioner is disqualified under section 415(a) for 1982 and 1983 based upon the excess annual additions made in prior years. The majority says that this phrase “suggests that we look at allocations made in prior years to determine a plan’s status in a given year.” (Majority opinion at 1185.) Under this view, use of the phrase “any taxable year,” rather than a phrase such as “the taxable year,” means that Congress intended to require disqualification for the current year if the subsection (c) limitation has been exceeded for “any taxable year,” even if the annual addition for the current year does not exceed the limitation of subsection (c).
The majority’s reading of section 415(a)(1)(B) is plainly wrong. It fails to recognize that this operational provision was written to apply the section 415(c) limitation on an overall basis to all defined contribution plans maintained by the same employer. The subject phrase refers to “contributions and other additions” which are made under the plan “with respect to any participant for any taxable year.” In this case, the employer maintained only one defined contribution plan which used the calendar year as its plan year. Therefore, each contribution or other addition made by the employer can relate to only one “taxable year” for purposes of section 415(a)(1)(B). However, an employer can maintain several plans with different years. See, e.g., sec. 1.415-2(b), Income Tax Regs. For purposes of applying section 415 in situations involving more than one defined contribution plan, all of the employer’s plans are aggregated and treated as one plan. Sec. 415(f)(1)(B). The phrase “any taxable year” is used in section 415(a)(1)(B) because the contributions and other additions for more than one taxable year can be implicated by an excess annual addition under section 415(c).2
After misconstruing the phrase “any taxable year,” the majority reasons that a defined contribution plan must be disqualified in later years if there has been a violation of section 415(c) in “prior years.” However, the phrase on which the majority relies, “any taxable year,” is not limited to only “prior years” in which excess annual additions are made. Under the majority’s reasoning, therefore, once a violation of section 415(c) occurs, disqualification under section 415(a)(1)(B) logically extends not only to later years, as the majority suggests, but also to “earlier years” preceding the year in which the first offending annual addition is made. If the majority is correct, a violation of the section 415 limitations for “any taxable year” logically causes a defined contribution plan and its related trust to be disqualified for all years. Such sweeping disqualification was clearly not intended by Congress but would be required under the majority’s opinion.
Furthermore, under the majority’s interpretation of section 415, once a violation takes place, the pension plan and its related trust are disqualified for other years “until the section 415 violation is corrected.” However, unlike other provisions of the Code in which Congress has specifically prescribed corrective measures, e.g., section 4975, section 415 provides no remedial or corrective mechanism to erase the taint from an excess annual addition made for a particular taxable year. Accordingly, there is nothing in the statute to differentiate between an uncorrected year, which is to be included under the phrase “any taxable year” in section 415(a)(1)(B), and a corrected year, which is not so included. Therefore, under the majority’s interpretation, the statute, as written, results in permanent disqualification of a plan for any violation of section 415.
The majority denies that its position requires permanent disqualification for violation of section 415 and states that it “construe[s] section 415 to require disqualification until remedial action is taken.” (Majority opinion at 1188.) The majority points to nothing in the statute on which it bases this “construction,” and its vague reference to “remedial action” fails to explain what type of action is required to end disqualification. What is clear, however, is that the remedial action approved by the Court in this case allows the excess contributions to remain in Mr. Martin’s account and, thus, would not cure the abuse perceived by the majority as justification for the continuing disqualification requirement in the first place.
Moreover, “remedial action” cannot be taken until an operational violation of section 415 is discovered. Thus, if an operational violation of section 415 is not discovered until after the passage of a number of years, the majority’s disqualification-until-correction rule will have an effect similar to permanent disqualification of the plan. This is particularly troublesome in view of the fact that neither ignorance of the law, nor, I suspect, inadvertence, constitutes grounds for the relief afforded by section 1.415-6(b)(6), Income Tax Regs. Buzzetta Construction Corp. v. Commissioner, 92 T.C. 641, 648-649 (1989).
The Hypothetical “Abuse” Perceived by the Majority and Congressional Intent
To justify its position, the majority hypothesizes that employers may intentionally violate the section 415 limitations by contributing a substantial portion of their earnings to a profit-sharing plan for the purpose of earning tax-deferred income in an exempt trust. Even though the facts of this case differ from those of the hypothetical, the majority reasons that petitioner must be disqualified under section 415 for 1982 and 1983 because the abuse which it perceives to be implicit in the hypothetical cannot be permitted.3 In effect, the majority decides this case based upon facts not before the Court. Moreover, this hypothetical abuse was not raised by respondent as grounds for his position and we do not have the benefit of the analysis of either party concerning the application of either section 415 or any other provision of the Code to such facts.
I agree with the majority that Congress was concerned with limiting the tax-deferred accumulation of income in exempt trusts. As the majority points out, this concern is demonstrated by section 415(c)(2) itself, which also limits the amount of nondeductible employee contributions. Nevertheless, the majority’s reasoning is flawed because it assumes that Congress must have intended continuing disqualification of every plan to be the only method to prevent the unwarranted tax deferral suggested by the hypothetical.
First, section 415 does not support the majority’s view that Congress intended broad use of disqualification to prevent unwarranted tax deferrals. Section 415(c)(2), the provision from which the majority extrapolates a Congressional intent for continuing disqualification, takes into account contributions and additions only on a year-by-year basis. In determining the qualified status of a plan for a particular year, section 415(c)(2) does not take into account earnings on excess contributions or anything else which might imply continuing taint of the plan. I submit that there is nothing in section 415 to suggest that disqualification in the year of the violation does not accomplish the intent of Congress or that Congress intended continuing disqualification.
Second, in considering section 415, Congress was well aware of the problem of unwarranted tax deferrals on excess contributions and specifically addressed this problem in the context of so-called H.R. 10 plans and individual retirement accounts through sections 2001(f) and 2002(d) of ERISA. The legislative history indicates that this problem did not escape the notice of Congress:
under the bill a nondeductible excise tax is to be imposed on contributions to individual retirement accounts and annuities in excess of the amounts deductible as retirement savings, unless these amounts (with earnings) are timely distributed from the account. This tax is to prevent the unwarranted tax deferral that would exist from income on excess contributions, and is to be 6 percent of the amount of the excess contributions. The excise tax is to be paid by the individual who made the excess contributions.
If an excess amount is contributed to an individual retirement account (or annuity) in one year and the excess is not eliminated in later years, the excise tax is to be owed on the excess amount for the year of contribution and for each successive year until the excess is eliminated. (The amount of the excess is to be determined as of the end of the individual’s taxable year.) However, an individual may eliminate an excess contribution in later years if he does not take his maximum allowable deduction for retirement savings in the later years. Under the bill, if an individual takes less than the maximum amount allowed as a retirement savings deduction in any year after the excess contribution is made, the difference between the maximum allowed deduction and the amount taken is to reduce a prior excess contribution. [H. Rept. 93-779 (1974), 1974-3 C.B. 244, 272. Fn. ref. omitted.]
Accordingly, sections 4972 and 4973, as enacted by ERISA, expressly provided that excess contributions to an H.R. 10 plan or individual retirement account from prior years are taken into account in computing the excess contribution for a given subsequent year for purposes of the excise tax thereon. In formulating a contribution limitation for corporate plans, however, Congress imposed a year-by-year limitation in section 415 and chose not to deal with the problem of unwarranted tax deferrals on excess contributions by means of that section.
Third, the majority assumes that continuing disqualification under section 415 is the only method Congress intended to address the hypothetical abuse. This assumption is not correct in view of the various excise taxes promulgated by Congress to address the problem of overfunding. Secs. 4972, 4980, 4981A, and 72(m)(5). Moreover, the hypothetical abuse identified by the majority, brought about by intentional overfunding of a plan, might be remedied by respondent’s invocation of his authority under section 482 or section 269A to reallocate tax benefits between or among controlled entities.
Conclusion
The unambiguous statute and a dispositive legislative regulation require limitation of disqualification under section 415 to the year in which an excess annual addition occurs. In arriving at its contrary conclusion, the majority in effect rewrites the statute. That task is best left to the Congress, not this Court. Justice Frankfurter admonished against the danger of attempting to rewrite an otherwise clear statute to conform to perceived policy considerations:
And so we have one of those problems in the reading of a statute wherein meaning is sought to be derived not from specific language but by fashioning a mosaic of significance out of the innuendos of disjointed bits of a statute. At best this is subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself. [Palmer v. Massachusetts, 308 U.S. 79, 83 (1939).]Chabot, Kórner, Swift, Wright, and Williams, JJ., agree with this dissent.
Congress recognized the importance which the definition of the term “year” would play in applying the sec. 415 limitation on an overall basis, not only in the context of employers with a single plan, but also in the context of employers with more than one plan. E.g., H. Rept. 93-779 (1974), 1974-3 C.B. 244, 362 n. 9. Accordingly, Congress specifically directed the Secretary of the Treasury to “prescribe such regulations as may be necessary to carry out the purposes of this section, including, but not limited to, regulations defining the term ‘year’ for purposes of any provision of this section.” Sec. 415(j). The regulations promulgated thereunder define the term “limitation year” and make it clear that the annual limitation contained in sec. 415(c) is to be applied on a year-by-year basis. Sec. 1.415-1(b) and sec. 1.415-6, Income Tax Regs.
This problem of applying sec. 415(c) on an overall basis to more than one defined contribution plan maintained by a single employer is summarized in the following section of Rev. Rul. 79-5, 1979-1 C.B. 165, which is one of the published rulings constituting guidelines issued by respondent prior to promulgation of the regulations later issued pursuant to sec. 415(3):
SEC. 4. LIMITATIONS FOR DEFINED CONTRIBUTION PLANS.
.01 Section 415(f)(1)(B) of the Code requires that all defined contribution plans (whether or not terminated) of an employer shall be treated as one defined contribution plan. This Section 4 provides guidelines for aggregating defined contribution plans with differing limitation years.
.02 If a participant is credited with annual additions or employee contributions in only one plan, in determining whether the requirements of section 415(c) are satisfied, only the limitation year applicable to that plan is considered. However, if a participant is credited with annual additions or employee contribution in more than one plan, each plan limitation year with respect to the participant which receives an addition or employee contribution must be considered in determining whether the requirements of section 415(c) are satisfied. Thus, the limitations for defined contribution plans described in Section 4 of Rev. Rul. 75-481 must be satisfied for a participant with respect to the limitation year of a plan if and only if such participant is deemed credited with an annual addition or an employee contribution with respect to that plan as of any date within that limitation year.
.03 For purposes of determining whether the requirements of Section 4 of Rev. Rul. 75-481 are satisfied with respect to any limitation year described in subsection .02, the annual additions taken into account shall be all annual additions allocated to an account of the participant under any plan (regardless of the limitation year of such plan) as of any date within such limitation year.
Most plans, and perhaps the overwhelming majority of plans, including the subject plan, could not be operated in this “abusive" manner without violating the exclusive benefit and nondiscrimination rules. See sec. 1.401-1(a)(3), Income Tax Regs., and sec. 401(a)(4).