Miller & Kearney v. Commissioner

1977 T.C. Memo. 16, 36 T.C.M. 81, 1977 Tax Ct. Memo LEXIS 425

• Court: United States Tax Court
• Decided: January 26, 1977
• Docket: Docket No. 4260-76R.
• Status: Unpublished

Opinion

MILLER & KEARNEY, a California Professional Corporation (formerly Miller, Jennings & Kearney), Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Miller & Kearney v. Commissioner

Docket No. 4260-76R.

United States Tax Court

T.C. Memo 1977-16; 1977 Tax Ct. Memo LEXIS 425; 36 T.C.M. (CCH) 81; T.C.M. (RIA) 770016;

January 26, 1977, Filed

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Robert E. Noel, for the petitioner.

Harry Morton Asch and Vernon R. Balmes, for the respondent.

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FAY

MEMORANDUM OPINION

FAY, Judge: This case is before us on respondent's motion to dismiss for lack of jurisdiction.

Petitioner is a California professional corporation engaged in the practice of law. In November 1973 petitioner adopted an employee stock bonus plan, with a plan year extending from February 1 to January 31. On December 12, 1973, an application for a determination letter was filed by petitioner with respondent. The application requested that a determination be made that the plan was qualified and that the accompanying trust was exempt from taxation. This application was submitted prior to the enactment of the Employee Retirement Income Security Act of 1974 and sought a determination that the plan was qualified pursuant to then existing law. ¹ No such determination was forth-coming from respondent.

On August 5, 1975, petitioner adopted an amendment to the plan, specifying that the amendment was effective as of December 10, 1973. The changes in this amendment included provisions relating to the allocation of contributions among petitioner's participating employees, the payment of benefits, vesting rights, forfeitures, and termination of the plan.

On March 22, 1976, petitioner adopted a second amendment, also effective as of December 10, 1973, which embodied a new definition of the employees eligible to participate in the plan. As originally written, the plan required employees wishing to participate to have completed at least four years of continuous employment with petitioner. As amended, the plan expanded the four-year continuous employment requirement so as to include continuous employment with any prior employer.

On May 17, 1976, having failed to obtain a determination from respondent, petitioner filed with this Court a petition for declaratory relief pursuant to section 7476. ²

It is respondent's position that section 7476 is not applicable to the particular plan years before us and that the petition should therefore be dismissed for lack of jurisdiction.

This issue was previously considered by us in Federal Land Bank Association,67 T.C. 29 (1976). In that case we held that the benefits accorded under section 7476 did not apply to taxpayers having plans in existence on January 1, 1974, when the plan year involved begins before January 1, 1976.

In the present case, petitioner's plan was adopted on November 30, 1973. The plan years now in issue began in November 1973, February 1974, and February 1975.

Hence, we conclude that the plan involved herein is not among those which are eligible for the new determination procedures under section 7476.

Respondent's motion to dismiss for lack of jurisdiction will therefore be granted.

An appropriate order will be issued.

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Footnotes

• 1. Secs. 401(a) and 501(a), Internal Revenue Code of 1954.

• 2. Unless otherwise indicated, all statutory references are to the Internal Revenue Code of 1954.