T.C. Memo. 2000-261

UNITED STATES TAX COURT

ABRAHAM LINCOLN OPPORTUNITY FOUNDATION, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4436-99X. Filed August 17, 2000.

Amber Wong Hsu, for petitioner.

Mark A. Ericson and Laurence D. Ziegler, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before us on respondent’s

motion to dismiss for lack of jurisdiction (respondent’s motion)

filed on May 22, 2000. On June 21, 2000, petitioner filed a

response to that motion (petitioner’s response). On July 14,

2000, respondent filed a reply to petitioner’s response (respondent’s reply).
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1According to petitioner, there is no tax exposure to anyone, either to petitioner or to any individual and corporate

donors to petitioner, resulting from respondent’s notice of

revocation. 

Respondent represents in respondent’s motion, and petitioner

agrees or does not dispute in petitioner’s response, (1) that

petitioner ceased all operations and dissolved under the laws of

the State of Colorado in 1995 and (2) that on March 5, 1999, when

the petition in this case was filed, all relevant periods of

limitations for any potential tax liability of petitioner and/or

its contributors had expired with respect to 1990 through 1994,

the years to which respondent’s notice of revocation issued on

December 7, 1998 (respondent’s notice of revocation) and that

petition relate.1 According to respondent, the two foregoing

undisputed factual allegations

clearly renders [sic] this case moot since any decision

rendered by this Court as to whether or not petitioner

was an I.R.C. § 501(c)(3) organization during the

period at issue will have no effect on past contributions to petitioner and, “[s]ince petitioner has dissolved itself, any questions concerning the future

deductibility of contributions by its donors do not

exist . . . .” National Republican Foundation, T.C.

Memo. 1988-336. 

9. Accordingly, this case is moot and should be

dismissed for lack of jurisdiction since there is no

actual controversy with respect to any issue in the

case. 

With respect to the dissolution of petitioner under the laws

of the State of Colorado that petitioner concedes occurred in

1995, petitioner argues in petitioner’s response:
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2All section references are to the Internal Revenue Code. 

All Rule references are to the Tax Court Rules of Practice and

Procedure. 

Whether or not Petitioner lacked legal capacity to file

Tax Court petitions is based on the law of the jurisdiction in which it was organized – Colorado. See,

Starvest US, Inc. v. Commissioner, 78 TCM 475 (1999). 

Colorado law states that “dissolution of a corporation

does not prevent commencement of a proceeding by or

against the corporation in its corporate name.” Colo.

Rev. Stat. Sec. 7-114-105(2)(e). Thus, Petitioner, is

not barred from commencing this proceeding simply

because its corporate status has been dissolved; if

actual tax dollars were involved, there would be no

question it would have a right to proceed. * * * 

In respondent’s reply, respondent agrees with petitioner

that “state law controls whether a dissolved corporation has the

legal capacity to be a petitioner in a tax deficiency case”. 

However, according to respondent, 

this point is irrelevant to the determination of whether an actual controversy exists for the purposes of

I.R.C. § 7428 and/or Tax Court Rule 210(c)(2)(C). A

deficiency proceeding clearly involves an actual controversy even when a dissolved corporation is the

petitioner since an actual tax liability is at issue. 

In the instant case, there is no actual controversy

since the petitioner ceased its corporate existence

more than four years prior to filing the petition and

all relevant statutes of limitations have expired with

regard to any potential tax liabilities. * * *

We need not decide whether this case should be dismissed for

lack of jurisdiction on the ground advanced by respondent that

there is no actual controversy in this case for purposes of

section 7428.2 That is because we find on the instant record

that this case must be dismissed for lack of jurisdiction on the
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3We also find on the record before us that petitioner is not

interested in prosecuting, and has thus far failed to prosecute,

this case in order to attempt to obtain the only remedy available

to it under sec. 7428, i.e., a declaration with respect to

petitioner’s continuing qualification as an organization described in sec. 501(c)(3). We further find on that record that

petitioner is not interested in pursuing its request in the

petition “that this Court issue a declaratory judgment declaring

that Petitioner is recognized as an organization described in

section 501(c)(3) of the Code for the years in issue [1990

through 1994]”. Instead, petitioner asks this Court, as it did

in petitioner’s motion to dismiss filed on Feb. 10, 2000 (petitioner’s Feb. 10, 2000 motion to dismiss), to order respondent to

annul or withdraw respondent’s notice of revocation on the ground

that respondent abused respondent’s discretion in issuing that

notice. According to petitioner, if we were to issue an order

“requiring Respondent’s annulment of Petitioner’s revocation

letter, Petitioner will move to dismiss its own Petition.” 

Assuming arguendo that we were not required to dismiss this case

for lack of jurisdiction, what we stated in the Court’s Order

dated Apr. 17, 2000, denying petitioner’s Feb. 10, 2000 motion to

dismiss, would pertain here: “Such summary determination [sought

by petitioner] cannot be made on the record. The remedy available to petitioner in the event that respondent abused his

discretion in issuing the notice of revocation is a declaratory

judgment as sought in the original petition.” 

ground that under the laws of the State of Colorado petitioner

does not have the capacity to engage in litigation in the Court.3

See Rule 60(c). 

Although respondent does not dispute petitioner’s contention

that under the laws of the State of Colorado petitioner “is not

barred from commencing this proceeding simply because its corporate status has been dissolved”, we do. In advancing that

contention, petitioner relies on Colo. Rev. Stat. sec. 7-114-

105(2)(e) (1999), which was in effect when petitioner claims it

dissolved in 1995 and when petitioner filed the petition in this
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case. However, the provision of Colorado law on which petitioner

relies, which is a provision contained in the Colorado Business

Corporation Act, did not apply to petitioner at those times or at

any other time since it was incorporated. The administrative

record, which was filed in this case on August 18, 1999, establishes that petitioner was incorporated in 1984 under the Colorado Nonprofit Corporation Act. Consequently, it was subject to

the Colorado Nonprofit Corporation Act, and not to the Colorado

Business Corporation Act. 

As pertinent here, section 7-26-120 of the Colorado Nonprofit Corporation Act, Colo. Rev. Stat. Ann. sec. 7-26-120 (West

1990) (repealed 1998), entitled “Survival of remedy after dissolution”, provided in pertinent part:

(1) The dissolution of a corporation in any manner

shall not take away or impair any remedy available to

or against such corporation, its directors, officers,

or members for any right or claim existing or any

liability incurred prior to the dissolution if action

or other proceeding thereon is commenced within two

years after the date of the dissolution; but the foregoing limitation shall not apply to any such action

affecting the title to real estate. Any such action or

proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate

name. The members, directors, and officers have power

to take such corporate or other action as shall be

appropriate to protect the remedy, right, or claim. 

* * *

(2) Notwithstanding any provision of articles 20 to 29

of this title to the contrary, after dissolution, title

to any corporate property not distributed or disposed

of in the dissolution shall remain in the corporation. 

The majority of the surviving members of the last

acting board of directors as named in the files of the
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4Although the record in this case establishes that the board

of directors of petitioner adopted a resolution on Jan. 3, 1995,

authorizing dissolution of petitioner and that petitioner filed a

“STATEMENT OF INTENT TO DISSOLVE OF A COLORADO NONPROFIT CORPORATION” with the secretary of state of Colorado on or after that

date, the record does not establish the date in 1995 on which

petitioner was considered to be dissolved under the laws of the

State of Colo. 

5The two-year limitation in Colo. Rev. Stat. Ann. sec. 7-26-

120(1) (West 1990) (repealed 1998) was repealed when the Colo.

Rev. Nonprofit Corp. Act was enacted. See Colo. Rev. Stat. sec.

7-134-105(3)(d)(1999). However, the Colo. Rev. Nonprofit Corp.

Act applies only to “existing corporate entities”, i.e., entities

in existence on June 30, 1998, the day before the effective date

of the Colo. Rev. Nonprofit Corp. Act, which were incorporated

under the Colo. Nonprofit Corp. Act that was in effect prior to

July 1, 1998. See Colo. Rev. Stat. sec. 7-137-101(1)(a) and (2)

(1999). Petitioner agrees that it was not in existence on June

30, 1998. Consequently, petitioner was not subject to any of the

provisions of the Colo. Rev. Nonprofit Corp. Act, including Colo.

Rev. Stat. sec. 7-134-105(3)(d)(1999). 

secretary of state pertaining to such corporation shall

have full power and authority to sue and be sued in the

corporate name and to hold, convey, and transfer such

corporate property, and, for purposes of suit against

the corporation, each such director shall be deemed an

agent for process. * * * 

On the record before us, we find that petitioner has failed

to establish that, when, as the parties agree, petitioner dissolved in 1995,4 it retained any property, let alone any real

property. We conclude on that record that petitioner was required by Colo. Rev. Stat. Ann. sec. 7-26-120(1) (West 1990)

(repealed 1998) to commence an action for any right or claim that

it had as of the time of its dissolution in 1995 within two years

after the date of that dissolution.5 The petition in this case

was filed on March 5, 1999. On the record presented, we conclude
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6See also Tezak Constr. Co. v. Commissioner, T.C. Memo.

1993-208.

that petitioner does not have the capacity under the laws of the

State of Colorado to engage in litigation in the Court. See

Colo. Rev. Stat. Ann. sec. 7-26-120 (West 1990) (repealed 1998). 

Accordingly, we conclude that this case must be dismissed for

lack of jurisdiction. See Rule 60(c); Bloomington Transmission

Serv., Inc. v. Commissioner, 87 T.C. 586 (1986); Dillman Bros.

Asphalt Co. v. Commissioner, 64 T.C. 793 (1975); Great Falls

Bonding Agency, Inc. v. Commissioner, 63 T.C. 304 (1974).6 

To reflect the foregoing,

An appropriate order will be

entered.