Phillip M. Wenger, C.P.A., A Sole Proprietor - Page 11




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          to make a timely contribution for purposes of section 412 if plan           
          contributions are made by the due date of the corporate tax                 
          return including extensions thereof, because for corporate                  
          taxpayers such date (including extensions thereof) falls 8-1/2              
          months after the close of the taxable year.  See secs. 6072(b),             
          6081(a).  Petitioner claims that similar treatment should be                
          given to self-employed taxpayers; i.e., that contributions made             
          by the due date of a self-employed individual’s return (including           
          extensions thereof) should be deemed timely for purposes of both            
          section 404(a) and section 412.  However, it is not within our              
          jurisdiction to change requirements that are plainly mandated by            
          statute.  In short, we cannot ignore the plain language of the              
          statute and, in effect, rewrite the statute to achieve what may             
          seem to petitioner to be a more equitable result.  See Hildebrand           
          v. Commissioner, 683 F.2d 57, 59 (3d Cir. 1982), affg. T.C. Memo.           
          1980-532; Johnson v. Commissioner, 661 F.2d 53, 54-55 (5th Cir.             
          1981), affg. 74 T.C. 1057 (1980); D.J. Lee, M.D., Inc. v.                   
          Commissioner, 92 T.C. at 302.                                               
               Accordingly, petitioner did not make a timely contribution             
          to the Wenger plan for purposes of the minimum funding standard             
          of section 412.  Respondent’s determination of excise tax under             
          section 4971(a) is therefore sustained.                                     









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