Mark and Valerie Kruse - Page 2




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          issue as to any material fact and whether a decision may be                 
          rendered as a matter of law as to whether petitioners have paid             
          or incurred litigation costs within the meaning of section                  
          7430(a)(2) and 7430(c)(1)(B)(iii).  Petitioners have filed a                
          response objecting to the granting of this motion.  Based on the            
          record herein, we conclude a hearing and oral argument is not               
          necessary for the resolution of the pending motion.                         
          Background                                                                  
               Petitioners are husband and wife.  Petitioner Mark Kruse is            
          the president and sole shareholder of Mark A. Kruse, D.C., P.C.,            
          d.b.a Kruse Chiropractic Clinic (hereinafter Kruse P.C.).  On May           
          17, 1995, respondent issued a notice of deficiency determining              
          deficiencies in petitioners' income tax for the 1991, 1992, and             
          1993 tax years.  The notice of deficiency determined adjustments            
          as to payments made by Kruse P.C. as a participating employer in            
          the Supplemental Employers' Benefit Association (SEBA) Employers'           
          Benefit Plan of America and the SEBA Employers' Benefit Trust of            
          America (hereinafter collectively referred to as the SEBA Plan)             
          for the 1991, 1992, and 1993 tax years.  The notice of deficiency           
          determined that the payments were includable in petitioners'                
          gross income for those years under sections 402(b)(1) and 83.               
          The matter involved the issue of whether the SEBA Plan is a                 


               1(...continued)                                                        
          Internal Revenue Code as amended.                                           




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