MEMORANDUM OPINION
DAWSON, Judge: These cases were assigned to Special Trial Judge Darrell D. Hallett for ruling on Motions to Dismiss for Lack of Jurisdiction filed by the respondents John Hoh, Kenneth Carroll, David Greenhut, Dominic Accetta, Angelo Ferraro, and A. J. Grau, (Trustees of the Brewery Workers Fund).
After review of the record we agree with and adopt the Special Trial Judge's opinion which is set forth below. 3
OPINION OF THE SPECIAL TRIAL JUDGE
HALLETT, Special Trial Judge: Petitioners brought these actions for declaratory judgment relying for jurisdiction upon
The circumstances leading up to the filing of these actions, not disputed by the parties, are as follows. In 1973, an agreement was entered into by the Brewery Workers Fund and the New York State Teamsters Conference Pension and Retirement Fund (Teamsters Fund) providing for a merger of the Brewery Workers Fund into the Teamsters Fund. Subsequent to the agreement, Rheingold Breweries, a large New York brewery operation and one of the employer-contributors to the Brewery Workers Fund, *155 ceased operations. By letter dated February 12, 1974, the Teamsters Fund notified the Brewery Workers Fund that because of their concern about the closing of the Rheingold Breweries, the trustees of the Teamsters Fund voted not to proceed with the merger. Thereafter, the Brewery Workers Fund brought suit in the New York State Supreme Court for specific performance of the 1973 agreement. On April 29, 1975, the New York Supreme Court granted the summary judgment motion filed by the Brewery Workers Fund and directed the Teamsters Fund to specifically perform the contract of merger. The trial court's opinion and order in this regard was affirmed on appeal in
*156 The 1973 agreement provided that it was conditioned upon the Commissioner's approval of the qualification of the merged funds for Federal tax purposes.In connection with the proceedings before the New York State courts regarding the enforceability of the merger agreement, the Teamsters Fund was ordered to "cooperate in the preparation and submission of the application to the Internal Revenue Service and to furnish the information requested by the actuary." By letter dated March 8, 1976, counsel for the Brewery Workers Fund submitted to the District Director, Internal Revenue Service, Buffalo, New York, a request for a determination that the "qualified and exempt status of the [Teamsters Fund] will not be affected by a merger of a local, multi-employer negotiated pension fund into the [Teamsters Fund] and that the merger of the two funds meets the requirements of the Employee Retirement Income Security Act [Pub. L. 93-406, 88 Stat. 995, hereinafter ERISA] in that the Brewery Workers Pension Fund will not 'terminate' as a result of the merger." 6
*157 The Brewery Workers Fund contends that the Teamsters Fund was notified of the filing of the determination request with the district director shortly after the request was made, and that efforts previously had been made by the Brewery Workers Fund to obtain the cooperation of the Teamsters Fund in making the determination request. The Teamsters Fund denies that it had notice of the request until after the Internal Revenue Service made a determination in response to it.
By letter dated September 28, 1976, the Buffalo District Director responded to the ruling request and concluded that "Based on the information supplied, we have made a favorable determination on your application identified above." In a letter dated November 19, 1976, to the Buffalo District Director, the Teamsters Fund stated that it first received the district director's letter of September 28, 1976, on November 10, 1976, and that it "never filed an application for such approval nor did [it] join with any other party in filing an application." The Teamsters Fund requested that the determination letter of September 28, 1976, be revoked. The matter was thereafter referred to the key district director in Brooklyn, *158 New York. The Brooklyn District Director's office then requested technical advice from the National Office, Internal Revenue Service, on the following questions: (1) Whether interested parties received sufficient notice of the Brewery Workers Fund's determination letter application to satisfy the notice requirements of the applicable Code and regulation provisions; (2) whether the absence of notice should result in the withdrawal of the determination letter approving the merger of the two funds. Various conferences were then held in the National Office and were attended by officials of the Internal Revenue Service and the two funds. Subsequently, a technical advice memorandum was issued by the National Office concluding that; (1) participants in the Teamsters Fund were "interested parties" and should have received notice of the ruling request that resulted in the determination letter of September 28, 1976; and (2) the interested parties involved should be given notice, but the determination letter should not be withdrawn during the period within which the interested parties were to be afforded the opportunity to comment on the determination.
The following letter dated October 25, 1978, was*159 sent by the Chief of the Employee Plans - Exempt Organization Division of the Brooklyn District Director's Office to counsel for the Teamsters Fund:
The enclosed Technical Advice copy is being sent to you in accordance with your telephone request of October 10, 1978.
You will note that with respect to Issue (1) the Technical Advice concludes that interested parties of the Teamsters Fund were not given proper notice of the determination letter application. With respect to Issue (2) the Technical Advice concludes that interested parties not previously given notice should now be given notice.
Please furnish this office with evidence that proper notice has been given to all interested parties within 30 days of the date of this letter.
On January 25, 1979, petitions were filed in these four consolidated cases. Mr. Mosley's petition alleges that Mr. Mosley is the administrator and a trustee of the Teamsters Fund. After setting forth allegations concerning the merger of the two funds and the circumstances relating to the September 28, 1976, determination letter and subsequent proceedings involving the Teamsters Fund's attempt to have the Commissioner revoke his prior determination,*160 Mr. Mosley requests this Court to make determinations as follows: (1) That the determination letter was illegally issued and is invalid; (2) that the Commissioner's October 25, 1978, letter to counsel for the Teamsters Fund, determining not to withdraw the determination letter, similarly was invalid; and that (3) an application (Form 5303) be submitted to the Internal Revenue Service by the trustees of the Teamsters Fund for a determination.
The other three petitions filed in these cases allege that each petitioner is a covered participant in the Teamsters Fund; otherwise, the petitions make the identical allegations and request the same relief as is set forth in Mr. Mosley's petition. 7
*161 The Brewery Workers Fund relies upon the following grounds in support of its motion to dismiss Mr. Mosley's case, or in the alternative, certain allegations made in his petition; (1) Petitioner failed to timely file the petition; (2) there is no "actual controversy" between Mr. Mosley, in his capacity as administrator of the Teamsters Fund, and respondent, Commissioner of Internal Revenue Service; (3) the technical advice issued by the National Office is not a "determination" within the meaning of
Before addressing some of the specific grounds raised by the Brewery Workers Fund in their motions, we believe there are fundamental defects regarding jurisdiction contained in all four petitions that should first be addressed. Each petition concludes with a request that this Court make the following determinations: (1) That the 1976 determination letter was "illegally issued and invalid"; (2) that the Commissioner's October 25, 1978 letter was similarly "invalid"; and (3) that a new application for determination with respect to the merger agreement should be submitted to the Commissioner. Notably absent from the requested relief is a request that we determine that as a result of the merger the Teamsters Fund is not a qualified plan. But an actual controversy involving the issue as to whether a plan is or is not qualified is an essential requirement for jurisdiction under
The Tax Court is to have jurisdiction to declare whether a plan is, or is not, a qualified plan, * * *. [S. Rept. 93-383 (1973) 1974-3 C.B. (Supp.) 80, 193.]
Moreover, *164 in reviewing a determination by the Commissioner regarding qualification of a plan, the Court is generally restricted to deciding "whether the Commissioner, in making his determination, properly applied the law to the facts presented in the request for determination."
The petitioners in these cases do not allege there has been a failure to make a determination within the meaning of
The requests that we declare the Commissioner's letters of 1976 and 1978 to be "illegally issued" or "invalid" are patently beyond the scope of jurisdiction conferred on this Court by
To the extent the petitioners*167 seek to raise matters related to qualification that are not involved within the scope of those considered by the Commissioner when he made his determination that the Teamsters Fund would remain qualified after the merger, we agree with the Brewery Workers Fund that we have no jurisdiction to consider these matters.
In this regard, the September 28, 1976 determination was in response to the letter request submitted to counsel for the Brewery Workers Fund that the Commissioner determine (1) the qualified and exempt status of the Teamsters Fund would not be affected by the merger and (2) the Brewery Workers Fund would not "terminate" as a result of the merger. Submitted with the request was a Standard Form 5303, the merger agreement, minutes of meetings of trustees of both of these funds, adopting the merger agreement and a "brief statement concerning the merger and the affect of the merger upon the benefits of the Brewery Workers Fund participants." It was based upon this request and the materials submitted with it that the Commissioner made the "favorable determination" of September 28, 1976. Each petition in these cases alleges in part that "at no point were major substantive issues*168 of law and fact concerning the termination, partial termination, and qualification of the funds ever raised or considered by the Internal Revenue Service before the determination letter was issued." To the extent this is the case, we lack jurisdiction because, as stated above, our jurisdiction is limited to a review of the Commissioner's conclusion based upon the reason stated in his determination and the record before him.
Significantly, petitioners do not even allege that the law, as applied to the facts presented to the Commissioner in the 1976 determination request, compels a conclusion that the Teamsters Fund fails to qualify and/or that the Brewery Workers Fund would terminate as a result of the merger. Rather, petitioners allege facts which they admit are outside the materials relied upon by the Commissioner in reaching his determination, and they request that based upon these facts we make a declaration that the Commissioner's determination was "illegally issued and invalid". It is clear to us that the statute and our prior judicial interpretations of it preclude us from making such a denovo investigation into the facts and a declaration concerning the "validity" *169 of the Commissioner's determination.
Petitioners allege that they were given no opportunity to submit comments, information, or arguments in connection with the September 28, 1976, determination. Assuming for purposes of these motions that this was the case, we nevertheless see no basis for this Court going outside the matters that were placed before the Commissioner when he made his determination and, contrary to the authorities discussed above, conduct an independent hearing concerning the facts and arguments that petitioners now wish to raise. We recognize that in
It is likewise clear that we have no jurisdiction to declare, as the petitions request, that the Teamsters Fund should submit a new application for qualification to the Commissioner. Since there is no requirement that a determination*171 even be sought from the Commissioner concerning the qualification of a retirement plan (see section 601.201(q)(3), Statement of Procedural Rules, hereinafter referred to as Procedural Rules) we see no basis for petitioners' request that we should direct in this case that an application for qualification be submitted.
In addition to seeking a declaration from this Court concerning the September 28, 1976, determination letter, petitioners seek a declaration that the Commissioner's letter of October 25, 1978, and/or the technical advice transmitted with it was invalid. We agree with respondents that these communications do not constitute a "determination" within the meaning of
In connection with the consideration of a request for determination as to the qualification of a retirement plan,*173 the key district director is authorized to obtain technical advice from the National Office. "Technical advice" is defined as:
[A]dvice or guidance as to the interpretation and proper application of Internal Revenue laws, related statutes, and/or regulations, to a specific set of facts, in Employee Plans and Exempt Organization matters, furnished by the National Office upon request of a key district office or Appeals office in connection with the processing and consideration of a nondocketed case. It is furnished as a means of assisting service personnel in closing cases and establishing and maintaining consistent holdings. [Sec. 601.201(n)(9)(i), Procedural Rules]
The National Office reply to a request for technical advice will generally be in the form of a "technical advice memorandum," which contains a discussion of the facts and issues and states the conclusion of the National Office, together with a transmittal memorandum to the key district director making the request. Sections 601.201(n)(9)(vi)(c), and (d), Procedural Rules. On receipt of these documents from the National Office, the district director may either request reconsideration or "proceed to process*174 the case on the basis of the conclusions expressed in the technical advice memorandum." Section 601.201(n)(9)(vii)(a), Procedural Rules.
It is clear from these rules that the National Office technical advice memorandum issued in response to the request of the Brooklyn District Employee Plans - Exempt Organization Division is not a determination which forms the basis for judicial review under
*175 Further, the district director's letter of October 25, 1978, to the Teamsters Fund counsel clearly is not itself a determination concerning the continuing qualification of the Teamsters Fund Plan. Rather, it merely amounts to a transmittal of the technical advice memorandum, and a request that the Teamsters Fund provide evidence that interested parties have been given notice and an opportunity to comment. The clear import of the letter was the district director's notification to the Teamsters Fund that the district director would continue consideration of the Teamsters Fund request that the 1976 determination letter be "withdrawn" but that the next step, procedurally, was the issuance of notice to interested parties. We simply cannot conclude in these circumstances that the district director made a determination in 1978 that, after considering the information that had been submitted to him, the merged funds were or were not qualified under the Internal Revenue Code. Rather, the district director clearly deferred making that determination in October 1978, until interested parties had the opportunity to comment.
Because the October 25, 1978 notification did not constitute a determination, *176 then petitioner Mosley must predicate jurisdiction upon the September 28, 1976 determination. However, as plan administrator, 9 petitioner Mosley had, under
Our conclusions set forth above require dismissal of all cases for lack of jurisdiction. We therefore need not and do not pass upon the other arguments made*178 by respondents in support of their positions.
Appropriate orders of dismissal will be entered.
Footnotes
1. Cases of the following petitioners are consolidated herewith: John Delguidice, docket no. 1146-79R; Wayne W. Woodhead, docket no. 1147-79R, and Anthony J. Dunadee, docket no. 1148-79R. ↩
2. Since the Commissoner of Internal Revenue, John Hoh, Kenneth Carroll, David Greenhut, Dominic Accetta, Angelo Ferraro, and A. J. Grau are respondents in these consolidated cases, the Commissioner of Internal Revenue will be referred to as Commissioner, and the other respondents, who were trustees of the Brewery Workers Pension Fund, will be referred to collectively as the Brewery Workers Fund.↩
3. Since this is a preliminary jurisdictional motion, The Court has concluded that the post-trial procedures of
Rule 182, Tax Court Rules of Practice and Procedure↩ , are not applicable in the present circumstances. This conclusion is based on the authority of the "otherwise provided" language of that rule.4. All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.↩
5. Court proceedings over the merger agreement continued in various courts up through the time that motions in these cases were submitted. In this regard, in early 1977 the Brewery Workers Fund requested the New York State Supreme Court to compel the Teamsters Fund to accept the assets of the Brewery Workers Fund and administer the funds pursuant to the merger agreement. This request for relief was granted and the trial court's order was upheld on appeal. Subsequent contempt proceedings resulted in the Teamsters Fund taking over administration of the Brewery Workers Fund (as a separate division of the Teamsters Fund), although motions by the Teamsters Fund to obtain relief from the orders and judgments of the New York State courts continued. In January 1977, individuals who were employees or retired employees covered by the Teamsters Fund brought an action in the United States District Court for the Western District of New York to enjoin the merger of the two funds on the ground that the merger violated the provisions of the Employee Retirement Security Act of 1974 [ERISA]
29 U.S.C. 1001 et seq. This action was dismissed by the District Court inCicatello v. Brewery Workers Pension Plan,434 F. Supp. 950 , (W.D.N.Y. 1977), affd.578 F.2d 1366 (2nd Cir. 1978) . In 1979, the Court of Appeals for the District of Columbia affirmed an unpublished opinion of the United States District Court for the District of Columbia dismissing an action brought by the Teamsters Fund in that court to set aside the merger.New York Teamsters Conference Pension and Retirement Fund v. Pension Benefit Guaranty Corp.,591 F.2d 953↩ (D.C. Cir. 1979) .6. An unsigned application Form 5303 was submitted with the letter. The application was thereafter returned by the district director to counsel for the Brewery Workers Fund for signature and it was resubmitted after being signed by the Chairman of the Brewery Workers Fund.↩
7. In addition to these four consolidated cases, four other declaratory judgment cases involving the merger of the two funds have been filed. One, another action brought by Mr. Mosley as administrator of the Teamsters Fund, is based upon a request for determination filed by the Teamsters Fund on September 11, 1978, and a response to that request made by the Commissioner on December 26, 1978. The remaining three cases involve actions by individuals who are participants in the Teamsters Fund claiming to be interested parties and seeking declarations from this Court concerning the September 28, 1976, letter issued by the Brooklyn District Director and another letter issued by the District Director in July 1979, as well as other relief. The Brewery Workers Fund has filed motions to dismiss each of these cases, and those motions are the subject of separate opinions.↩
8. Petitioners note legislative history to the effect that an employer will be deemed to have exhausted his administrative remedies if he either appeals a proposed determination of the district director to the appeals office, or has requested or obtained through the district director technical advice from the National Office. S. Rept. 93-383 (1973) 1974-3 C.B. (Supp.) 193; H. Rept. 93-807 (1974), 1974-3 C.B. (Supp.) 341. These statements in the legislative history are merely consistent with the procedural rules providing that where technical advice is obtained by the key district director, his determination will be consistent with the advice, and the applicant in that case cannot appeal the determination to the appeals office. Sections 601.201(n)(9)(viii) and 601.201(o)(2)(iii), Procedural Rules. The legislative history and the procedural rules in accordance with it clearly do not make the technical advice itself a determination within the meaning of
section 7476↩ .9. The record clearly reflects that if Mr. Mosley is to qualify at all as a "petitioner" under
section 7476(b)(1) , he must do so in his capacity as a plan administrator. Although the petition alleges, in conclusory terms, that Mr. Mosley is an interested party within the meaning ofsection 7476(b)(1) , the only factual allegation concerning Mr. Mosley's capacity refers to his position as administrator and trustee of the Teamsters Fund. Mr. Mosley makes no argument that he was in fact, "an employee" within the meaning ofsection 7476(b)(1)↩ and the applicable treasury regulations.