Frank A. Sonier - Page 5




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          over a declaratory judgment action under section 7476, there must           
          be an actual controversy involving a determination by the                   
          Secretary with respect to the initial or continuing qualification           
          of a retirement plan.  See sec. 7476(a).                                    
               In deciding whether an actual controversy exists, we look to           
          the standard set forth by the Supreme Court in Maryland Cas. Co.            
          v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).  The                   
          standard is whether, under all the facts and circumstances, there           
          is a "substantial controversy, between parties having adverse               
          legal interests, of sufficient immediacy and reality to warrant             
          the issuance of a declaratory judgment."  Id.; see also Loftus v.           
          Commissioner, supra at 856.                                                 
               We have noted that an actual controversy under section 7476            
          generally arises from some disagreement between a petitioner and            
          the Commissioner as to the qualified status of the plan.  See               
          Halliburton Co. v. Commissioner, supra at 105; Loftus v.                    
          Commissioner, supra at 855-859.                                             
               We begin, therefore, by examining petitioner's arguments               
          with respect to the qualified status of the plan.  Petitioner               
          claims that the IRS should not have approved the plan because the           
          rate of return is unfavorable, petitioner preferred a section               
          401(k) plan, and the proper notice requirements were not met.  We           
          address his defective notice argument first.                                







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