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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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