James G. and Anita M. Forret - Page 6

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          would have been the same had the contributions been made through            
          a salary deduction.”  According to petitioners, this is because             
          contributions under a qualified salary reduction arrangement are            
          made before tax.  Petitioners contend that by using after tax               
          money from petitioner’s savings account and then deducting a                
          corresponding amount, the same result is achieved and “the IRS is           
          no worse off after this lump sum contribution than they would               
          have been had the money been withheld monthly from Petitioners              
          [sic] paychecks.”  Petitioners argue that they should not be                
          penalized for making “an honest mistake”.                                   
               While we are not unsympathetic to petitioners’ position,               
          such an equitable argument cannot overcome the plain meaning of             
          the statute.  See Eanes v. Commissioner, 85 T.C. 168, 171 (1985)            
          (citing Hildebrand v. Commissioner, 683 F.2d 57, 59 (3d Cir.                
          1982), affg. T.C. Memo. 1980-532).  As we have said in cases                
          involving other statutes whose application has resulted in                  
          perceived unfairness, such issues are in the province of                    
          Congress, and we are not authorized to rewrite the statute.  See,           
          e.g., Kenseth v. Commissioner, 114 T.C. 399, 407-408 (2000),                
          affd. 259 F.3d 881 (7th Cir. 2001) (and cases cited thereat); see           
          also Commissioner v. McCoy, 484 U.S. 3, 7 (1987) (“The Tax Court            
          is a court of limited jurisdiction and lacks general equitable              
          powers”).  Accordingly, respondent’s determination is sustained.            

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