Howard E. Clendenen - Page 9




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          i.e., the plan is not qualified.  Sec. 415(a)(1)(B), (c)(1);                
          Howard E. Clendenen, Inc. v. Commissioner, T.C. Memo. 1998-318.             
               Further, when a plan is disqualified under section 415, the            
          disqualification continues until remedial action is taken.                  
          Martin Fireproofing v. Commissioner, 92 T.C. 1173, 1188 (1989).             
          Corrective action of the sort set forth in the regulations is a             
          prerequisite to requalification of a plan following a violation             
          of section 415.  Id. at 1184; Van Roekel Farms v. Commissioner,             
          T.C. Memo. 2000-171.  As we stated in the declaratory judgment,             
          the corporation had not argued or established that any corrective           
          measures were taken, citing section 1.415-6(b)(6), Income Tax               
          Regs.5  Howard E. Clendenen, Inc. v. Commissioner, supra.                   
               Petitioners argue that Rev. Rul. 72-368, 1972-2 C.B. 220,              
          and Rev. Rul. 73-79, 1973-1 C.B. 194, support their contention              
          that disqualification in a prior year does not prevent the plan             
          from being qualified in a future year when it meets the                     
          requirements of section 401(a).  We disagree.  In Martin                    
          Fireproofing, we stated that (1) Rev. Rul. 72-368, supra,                   
          predates section 415, which was enacted in 1974, and (2) Rev.               
          Rul. 72-368, supra, does not require respondent to qualify a plan           



               5  Sec. 1.415-6(b)(6), Income Tax Regs., provides for                  
          retroactive relief when an excess allocation results from (1)               
          forfeitures, (2) a “reasonable error in estimating” compensation,           
          or (3) “other limited facts and circumstances” to be determined             
          by respondent.  See Martin Fireproofing v. Commissioner, 92 T.C.            
          1173, 1182 (1989).                                                          





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