T.C. Memo. 1998-149

UNITED STATES TAX COURT

CALVERT ANESTHESIA ASSOCIATES-PRICHA PHATTIYAKUL, M.D. P.A., 

Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18857-97R. Filed April 27, 1998. 

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

petitioner.

Clare J. Brooks, 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 7476.1 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.

Background

Petitioner maintains a money purchase pension plan named the

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

Purchase Pension 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 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,
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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 Calvert Anesthesia Associates-Pricha Phattiyakul, M.D.

P.A. v. Commissioner, 110 T.C. (1998), an Opinion that we

also filed today, the same employer as the instant case

petitioned the Court for a declaratory judgment as to the status

of its profit sharing plans. The facts of that case are almost

identical with the facts of the instant case, but for the fact

that the retirement plan here is a money purchase plan. 

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

P.A. v. Commissioner, supra, we held that section 7476(b)(5)

requires that a petition for declaratory judgment be filed within

91 days of the issuance of a final revocation letter, and that

equitable considerations do not allow us to expand on this time

period. We hold the same here. Because petitioner did not

petition the Court for declaratory judgment within this 91 day

period, we must dismiss this case.
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For the foregoing reasons, 

An appropriate order

will be entered.