Metadure Corp. v. Commissioner , 36 T.C.M. 164 ( 1977 )

METADURE CORPORATION, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Metadure Corp. v. Commissioner

Docket No. 9499-76R.

United States Tax Court

T.C. Memo 1977-37; 1977 Tax Ct. Memo LEXIS 403; 36 T.C.M. (CCH) 164; T.C.M. (RIA) 770037;

February 16, 1977, Filed

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Stephen L. Golding, for the petitioner.

Byron J. Furseth, for the respondent.

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DAWSON

MEMORANDUM OPINION

DAWSON, Chief Judge: This case was assigned to Special Trial Judge Randolph F. Caldwell, Jr., for the purpose of conducting the hearing and ruling on respondent's motion to dismiss for lack of jurisdiction filed herein. After a review of the record, we agree with and adopt his opinion which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

CALDWELL, Special Trial Judge: This case is now before the Court on respondent's motion to dismiss for lack of jurisdiction.

Petitioner is a corporation with its principal place of business in New York. Petitioner's employee retirement plan, which received Internal Revenue Service approval in 1960, was terminated in March 1971. The employee retirement plan trust, an integral part of petitioner's terminated retirement plan, is still in existence today. In 1974, a Bankruptcy Court of the United States directed petitioner to terminate the trust; upon such termination petitioner was to recover a surplus due it, and distribute the balance of the trust fund to vested beneficiaries. On February 21, 1975, an Application for Determination, Termination of Plan or Trust was filed with the Internal Revenue Service, requesting an approval prior to termination. Respondent has issued no determination.

On October 17, 1976, having failed to obtain a determination from respondent, petitioner filed with this Court a petition for declaratory relief pursuant to section 7476. ¹ Respondent moves to dismiss the petition for lack of jurisdiction on the grounds that section 7476 declaratory judgment procedures are inapplicable to the particular plan years before us.

This Court has already had occasion to address this issue in . In that case we held that the declaratory judgment relief under section 7476 was unavailable to taxpayers having plans ² in existence on January 1, 1974, when the plan year involved begins before January 1, 1976.

In this case the petitioner's trust was in existence on January 1, 1974, and the present controversy involves the trust year beginning in 1975. Hence we conclude the trust involved is not among those eligible for relief under the new declaratory judgment procedures of section 7476, for the year involved herein.

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

An appropriate order will be entered.*

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Footnotes

• 1. Statutory references are to the Internal Revenue Code of 1954, unless otherwise indicated.↩

• 2. Section 7476(d) provides that for purposes of that 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 plan↩ ***. [Emphasis supplied.]