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In this notice of deficiency, respondent based the determinations
on the plan’s being nonqualified. On August 21, 1996, Mr.
Clendenen filed a petition with the Court in which Mr. Clendenen
referred to the “erroneous allegation that said trust is not
qualified.”
On September 29, 1997, the parties in both cases each filed
a joint motion for continuance. The parties sought a continuance
in order to present the plan qualification issue to the Court in
a declaratory judgment action, Howard E. Clendenen, Inc. v.
Commissioner, docket No. 18155-96R, because the qualified status
of the plan was the significant issue in these cases. On October
2, 1997, the Court granted these motions.
On February 13, 1998, the corporation and Mr. Clendenen each
filed a Stipulation of Settled Issues. The corporation’s
stipulation of settled issues provided in part:
8. For the taxable year ended June 30, 1987, the
parties agree that the issue designated “ESOP Contribution
to Non-Qualified Plan” in the notice of deficiency is
consequential to the issue of plan qualification in related
docket 18155-96 “R”.
9. For the taxable year ended June 30, 1988, the
parties agree that the issue designated “Deductible
Dividends to ESOP” in the notice of deficiency is
consequential to the issue of plan qualification in related
docket 18155-96 “R”.
10. For the taxable year ended June 30, 1988, the
parties agree that the issue designated “Non-Qualified
Contribution - Allowed in Yr. included in 1040" in the
notice of deficiency is consequential to the issue of plan
qualification in related docket 18155-96 “R”.
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