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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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