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Petitioners’ reliance on the above regulation is misplaced. A
plain reading of the regulation indicates that the regulation
refers to a plan which utilizes compensation levels to
distinguish who is eligible to accrue benefits under the plan.
The record lacks any evidence that MSPERS utilized an eligibility
scheme based on compensation. The plan clearly indicates that
petitioner’s eligibility was mandatory and automatic; whereas,
actual receipt of any benefits turned on petitioner’s ability to
meet the minimum service credits and age requirement. Section
1.219-2(b), Income Tax Regs., does not address petitioner’s
eligibility to receive benefits under the MPSERS plan.
At the heart of petitioners’ argument is an equitable plea
which this Court has addressed on previous occasions. It is
sufficient to say that petitioners, in effect, are asking us to
legislate changes in the statute as enacted by Congress. The
power to legislate is exclusively the power of Congress and not
of this Court. See Iselin v. United States, 270 U.S. 245, 250
(1926).
Upon the basis of the record, we find that petitioner was an
“active participant” in a qualified plan during 1996.
Accordingly, petitioners are not entitled to deduct their IRA
contributions. See sec. 219(g)(1) and (2). We have considered
all arguments by the parties, and, to the extent not discussed
above, conclude they are irrelevant or without merit.
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