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The statute provides that only certain persons are permitted
to file a pleading to initiate a proceeding for such a
declaratory judgment. Sec. 7476(b)(1). Petitioner maintains
that he is a permissible petitioner because, in the words of
section 7476(b)(1), he is “an employee who has qualified under
regulations prescribed by the Secretary as an interested party
for purposes of pursuing administrative remedies within the
Internal Revenue Service”.
Respondent Commissioner contends5 that petitioner does not
qualify as an “interested party” because (1) the MEBA Plan is
collectively bargained and so the applicable regulation is
section 1.7476-1(b)(4), Income Tax Regs.; (2) this regulation
requires an interested party to be a “present” employee, and
petitioner had retired and so was not a present employee at the
relevant time of determination; and (3) petitioner is not an
interested party under any other provision in the regulations.
Petitioner responds that he qualifies as an interested party
because (1) he is considered retired for pension purposes only;
(2) respondent Commissioner misinterprets section 1.7476-1(b)(4),
Income Tax Regs.; (3) the Supreme Court’s interpretation of the
term “employee” in Robinson v. Shell Oil Co., 519 U.S. 337
(1997), should be applied to section 7476; and (4) in any event
5 Respondent Board “concurs in the filing and granting”
of respondent Commissioner’s motion to dismiss.
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