T.C. Memo. 1998-159

UNITED STATES TAX COURT

GLEN A. FINNELL, Petitioner v. COMMISSIONER OF 

 INTERNAL REVENUE, Respondent

Docket No. 17870-97R. Filed May 4, 1998. 

Glen A. Finnell, pro se.

William I. Miller, for respondent.

MEMORANDUM 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
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1 Section references are to the applicable provisions of the

Internal Revenue Code.

prescribed in section 7476(b)(5).1 Petitioner objects thereto. 

Petitioner alleges that a letter he wrote to the Internal Revenue

Service should be considered his petition to this Court, and, if

it is not, that equitable considerations support denying

respondent's motion. 

Background

Linscott, Haylett, Wimmer & Wheat, P.C. (the Company),

maintains a profit-sharing plan named the Linscott, Haylett,

Wimmer & Wheat, P.C. 401(k) Profit Sharing Plan (the Plan). 

On May 13, 1997, the District Director of the Midstates Key

District of the Internal Revenue Service (the District Director)

issued the Company a final determination letter stating that the

Company's "termination of * * * [the Plan] did not adversely

affect its qualification for Federal tax purposes." The letter

also reminded the Company about certain filing obligations that

it had in connection with the Plan and listed the name, address,

and phone number of a person to contact for information

concerning the letter. 

The District Director mailed a copy of the final

determination letter to petitioner on the same day. Enclosed

with this copy was another letter from the District Director

stating in relevant part:
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Dear Mr. Finnell:

Thank you for your comments concerning this plan. 

Enclosed is a copy of a final determination letter that

was issued for this plan.

Interested parties who make comments on a

determination letter request may petition the U.S. Tax

Court for a declaratory judgment regarding the

determination if they disagree with the determination. 

If you wish to file such a petition, it must be made

before 92 days after the date this letter was mailed to

you.

On August 8, 1997, petitioner wrote a letter to the District

Director stating that "This letter is to petition the U.S. Tax

Court for a declaratory judgment regarding the determination on

the Linscott, Haylett, Wimmer & Wheat (LHWW) P.C. 401(k) Profit

Sharing Plan, as defined by your letter dated May 13, 1997." On

August 20, 1997, petitioner mailed a letter to the Court stating

that "This letter is to petition the U.S. Tax Court for a

declaratory judgment regarding the determination on the Linscott,

Haylett, Wimmer & Wheat (LHWW) P.C. 401(k) Profit Sharing Plan." 

We received petitioner's letter on August 26, 1997, and we filed

it as a petition for declaratory judgment as to the status of the

Plan.

Discussion

In Calvert Anesthesia Associates-Pricha Phattiyakul, M.D.,

P.A. v. Commissioner, 110 T.C. (1998), we recently held that

section 7476(b)(5) requires that a petition for declaratory

judgment be filed with the Court within 91 days of the issuance
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of a final determination letter, and that equitable

considerations do not allow us to extend this time period. Thus,

if petitioner did not file his petition with the Court within

this 91-day period, we must dismiss this case for lack of

jurisdiction.

We filed petitioner's petition 105 days after respondent

mailed him a copy of the final determination letter that was

issued to the Company on the same day. Petitioner argues,

however, that he mailed a "petition" to the Internal Revenue

Service within the 91-day period, and that his "petition"

qualifies as a petition to this Court. Petitioner's argument

must fail. The United States Tax Court is a Federal tribunal

that is separate, apart, and independent from the Internal

Revenue Service. As we have held repeatedly, the mere fact that

a taxpayer such as petitioner may have sent written notification

to the Internal Revenue Service of his intent to petition the

Court for relief does not mean that he has filed a petition with

us to effectuate his intent. See, e.g., Cassell v. Commissioner,

72 T.C. 313 (1979); Axe v. Commissioner, 58 T.C. 256 (1972);

Matteson Co. v. Commissioner, 1 B.T.A. 905 (1925); see also

O'Connor v. Commissioner, T.C. Memo. 1994-16; Zee v.

Commissioner, T.C. Memo. 1987-83; Hinman v. Commissioner, T.C.

Memo. 1978-133; Garland v. Commissioner, T.C. Memo. 1971-79.
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In sum, petitioner did not petition the Court for a

declaratory judgment within the 91-day period of section

7476(b)(5). Thus, we must dismiss this case. To do so,

An appropriate order will

be entered.