Calvert Anesthesia Associates-Pricha Phattiyakul, M.D., P.A. v. Commissioner

110 T.C. No. 22

• Court: United States Tax Court
• Decided: April 27, 1998
• Docket: 18856-97R
• Status: Unknown

Opinion

110 T.C. No. 22

UNITED STATES TAX COURT

CALVERT ANESTHESIA ASSOCIATES-PRICHA PHATTIYAKUL, M.D. P.A., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18856-97R. Filed April 27, 1998.

R moves to dismiss this case for lack of jurisdiction, alleging that P's petition for declaratory judgment with respect to the status of its profit sharing plan was untimely. P petitioned the Court 94 days after R issued P a final revocation letter with respect to the plan. Held: Sec. 7476(b)(5), I.R.C., requires that a petition for declaratory judgment be filed before the 91st day after the day after the issuance of a final revocation letter. Hence, we must dismiss this case for lack of jurisdiction.

Mark C. Kopec, Paul W. Madden, and Herman B. Rosenthal, for

petitioner. - 2 -

Clare J. Brooks, for respondent.

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

prescribed in section 7476. 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.

We shall grant respondent's motion. Section references are

to the applicable provisions of the Internal Revenue Code.

Rule references are to the Tax Court Rules of Practice and

Procedure.

Background

Petitioner maintains a profit sharing plan named the Calvert

Anesthesia Associates-Pricha Phattiyakul, M.D. P.A. Profit

Sharing 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 - 3 -

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, 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 a case of first impression, we must decide, as a

jurisdictional matter, the number of days that an employer or

other qualified person has to petition this Court for a

declaratory judgment following the issuance of a final revocation

letter. Respondent alleged initially that petitioner, the

employer at hand, had 92 days. In the response to petitioner's

objection, respondent shortens this period by 1 day, alleging - 4 -

that the petition must be filed in 91 days. Petitioner refers in

its objection to the 92-day period first mentioned by respondent,

and, after pointing out that the 92d day fell on a Saturday,

notes that the petition was filed 2 days later on Monday. Even

if the petition were untimely, petitioner argues, respondent has

waived the right to challenge the timeliness of the petition, or,

alternatively, the Court should extend the period of time in

which the petition had to be filed. Petitioner alleges that

equitable considerations support a conclusion that the petition

was timely.

We agree with respondent that we do not have jurisdiction to

decide this case. We are a Court of limited jurisdiction, and we

may exercise our jurisdiction only to the extent authorized by

Congress. Neilson v. Commissioner, 94 T.C. 1, 9 (1990); Naftel

v. Commissioner, 85 T.C. 527, 529 (1985); see also sec. 7442.

Whether we have jurisdiction over the subject matter of a dispute

is an issue that either party thereto, or this or an appellate

court sua sponte, may raise at any time. The failure to question

our jurisdiction is not a waiver of the right to do so, for if we

lack jurisdiction over an issue, we do not have power to decide

it. See Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 (1982); see also Brown v.

Commissioner, 78 T.C. 215, 217-218 (1982), and the cases cited

therein. As a Court of limited jurisdiction, we have no - 5 -

authority to apply equitable principles to assume jurisdiction

over a matter not authorized by statute. See Odend'hal v.

Commissioner, 95 T.C. 617, 624 (1990), and cases cited therein.

We must decide whether we have jurisdiction to make a

declaratory judgment as to the qualification of the Plan under

section 401(a). Before the passage of the Employee Retirement

Income Security Act of 1974 (ERISA), Pub. L. 93-406, 88 Stat.

829, we would have had to answer this question "no". Before

ERISA, we were not authorized to grant a declaratory judgment

concerning respondent's determination that an employer's pension

plan failed to qualify under section 401(a). H. Rept. 93-807, at

106 (1974), 1974-3 C.B. (Supp.) 236, 341. Instead, the employer

under the then-existing law could seek judicial review of

respondent's action after the employer made contributions to its

plan, claimed the contributions as a deduction on its Federal

income tax return, and had those deductions disallowed by the

Internal Revenue Service. Id.

In 1974, the Congress enacted ERISA to deal with a number of

matters affecting retirement plans, one matter of which was the

unavailability of a judicial forum to grant a declaratory

judgment with respect to the initial or continuing qualification

of retirement plans. H. Rept. 93-807, supra at 6, 1974-3 C.B.

(Supp.) at 241. As part of ERISA, the Congress enacted section

7476 to establish a declaratory judgment procedure under which an - 6 -

employer could challenge respondent's determination with respect

to the qualification of its employee benefit plan. H. Rept.

93-807, supra at 107, 1974-3 C.B. at 342. Section 7476 provides:

SEC. 7476. DECLARATORY JUDGMENTS RELATING TO QUALIFICATION OF CERTAIN RETIREMENT PLANS.

(a) Creation of Remedy.--In a case of actual controversy involving--

(1) a determination by the Secretary with respect to the initial qualification or continuing qualification of a retirement plan under subchapter D of chapter 1, * * *

* * * * * * *

upon the filing of an appropriate pleading, the Tax Court may make a declaration with respect to such initial qualification or continuing qualification. Any such declaration shall have the force and effect of a decision of the Tax Court and shall be reviewable as such. * * *

(b) Limitations.--

(1) Petitioner.--A pleading may be filed under this section only by a petitioner who is the employer, the plan administrator, an employee who has qualified under regulations prescribed by the Secretary as an interested party for purposes of pursuing administrative remedies within the Internal Revenue Service, or the Pension Benefit Guaranty Corporation.

(5) Time for bringing action.--If the Secretary sends by certified or registered mail notice of his determination with respect to the qualification of the plan to the persons referred to in paragraph (1) (or, in the case of employees - 7 -

referred to in paragraph (1), to any individual designated under regulations prescribed by the Secretary as a representative of such employee), no proceeding may be initiated under this section by any person unless the pleading is filed before the ninety-first day after the day after such notice is mailed to such person (or to his designated representative, in the case of an employee).

(c) Retirement Plan.--For purposes of this section, the term "retirement plan" means--

(1) a pension, profit-sharing, or stock bonus plan described in section 401(a) or a trust which is part of such a plan, or

(2) an annuity plan described in section 403(a).

Thus, following the passage of ERISA, our authority to make a

declaratory judgment concerning the qualification of a retirement

plan, or whether the qualification of a retirement plan is

revoked, is subject to five jurisdictional limitations set forth

in section 7476(b). See also Rule 210(c). Any of these

limitations, if not met, will prevent us from making a

declaratory judgment and will result in a dismissal of the

underlying petition. Id.; McManus v. Commissioner, 93 T.C. 79,

84 (1989).

We are concerned with the limitation in section 7476(b)(5),

namely, the time for bringing an action for a declaratory

judgment. Our decision turns on the text of this section, which,

if plain and unambiguous, is the answer to our inquiry. To the

extent that we can understand and apply the plain meaning of

unambiguous statutory text, we shall do so. Garcia v. United - 8 -

States, 469 U.S. 70, 76 n.3 (1984); see also Ex parte Collett,

337 U.S. 55 (1949); Venture Funding, Ltd. v. Commissioner,

110 T.C. (1998).

The critical language in section 7476(b)(5) is that "no

proceeding may be initiated * * * [in this Court for a

declaratory judgment] unless the pleading is filed before the

ninety-first day after the day after such notice is mailed to

such person". We find this text to be unambiguous. The text

means that a petition for declaratory judgment must be

filed within 90 days of the day following the day that respondent

issued the final revocation letter, or, in other words, no more

than 91 days after the letter was issued.

Although not necessary to our understanding of the text, we

have reviewed the legislative history of section 7476(b)(5) and

conclude that this history does not change our result. When

passed by the House, the House bill read as follows:

(5) Time for bringing action.--If the Secretary or his delegate sends by certified or registered mail his determination with respect to the qualification of the plan to the persons requesting such determination, no proceeding may be initiated under this section by any person unless the pleading is filed before the 91st day after the date such person is notified by the Internal Revenue Service of such mailing. [H.R. 12855, 93d Cong., 2d Sess. sec. 1041(a) (1974).]

With respect thereto, the underlying report of the House Ways and

Means Committee stated: "No petition to the Tax Court may be

filed after 90 days from the date on which the Secretary or his - 9 -

delegate sends notice to a person of his determination * * * as

to the qualification of the plan." H. Rept. 93-807, supra at

109, C.B. (Supp.) at 344.

When the bill went to the Senate, the Senate changed the

House language to read in relevant part as follows:

(b) Time for bringing action.--

(1) 90-DAY PERIOD.--* * * an action for declaratory judgment under this part must be commenced within 90 days after the date on which the Secretary or his delegate sends by certified or registered mail his determination with respect to the qualification of the plan to the person requesting such determination. [H.R. 2, 93d Cong., 1st Sess. sec. 601(a) (1974).]

The report of the Senate Finance Committee stated in relevant

part:

the petition to the Tax Court for a declaratory judgment must be filed within 90 days after the date on which the Commissioner sends by certified or registered mail his final determination in response to an employer or trustee's request for a determination. * * * [S. Rept. 93-383 (accompanying S. 1179), at 116 (1973), 1974-3 C.B. (Supp.) 80, 195.]

The bill was altered in conference, so that instead of a

90-day filing period, section 7476(b)(5) requires that a petition

be filed "before the ninety-first day after the day after such

notice is mailed". (Emphasis added.) The conference report does

not explain the change to this 91-day period. See H. Conf. Rept.

93-1280, at 331-332 (1974), 1974-3 C.B. 415, 492-493. In the

absence of such an explanation, we do not know why the statute as

enacted contains language different from that in the House and - 10 -

Senate bills. The phrase "after the day after such notice is

mailed" (emphasis added) appears to be unique to section 7476.1

We decline, however, to second guess Congress' use of these words

or to otherwise ignore them. We hold that an employer such as

petitioner has 91 days from the issuance of the final revocation

letter to petition this Court for a declaratory judgment with

respect thereto.

As applied to the facts at hand, section 7476(b)(5) allows

us to make a declaratory judgment as to the status of the Plan

if, and only if, the petition was filed on or before

September 12, 1997 (the 91st day after the letter was issued),

which was not a Saturday, Sunday, or legal holiday in the

District of Columbia.2 Because it was not filed on or before

that date, we hold that we are without jurisdiction and must

dismiss this case.

We have considered all arguments made by the parties in this

matter, and, to the extent not addressed above, find them to be

irrelevant or without merit.

1 We have been unable to find any other section of the Code that uses this phrase. Other sections of the Code that authorize this Court to grant a declaratory judgment include secs. 6234, 7428, 7477, 7478, and 7479. 2 Sec. 7503 acts to lengthen the 91 day period of sec. 7476(b)(5) when the 91st day falls on a Saturday, Sunday, or legal holiday in the District of Columbia. - 11 -

For the foregoing reasons,

An appropriate order

will be entered.