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interested parties with respect to the Brewery Workers Fund.

The legislative history of section 7476 provides that "to bring an action an individual must have been an employee of the employer during the period for which he is requesting the qualification of the plan." S. Rept. 93-383 (1974), 1974-3 C.B. 1, 194-195. Petitioners here seek a declaratory judgment with respect to the qualified status of the Brewery Workers Fund. Clearly they are not now, nor have they ever been, employees of any employer contributing to the Brewery Workers Fund.

Nevertheless, petitioners appear to argue that by reason of the merger, employees participating in the Teamsters Fund are interested parties with respect to the Brewery Workers Fund, despite the fact that such employees have never participated in the Brewery Workers Fund. It is clear that under section 7476, an interested party with respect to a plan must have vested or accrued benefits, or be receiving benefits under that plan. Petitioners do not now have, nor have they ever had, such interests under the Brewery Workers Fund.

Our jurisdiction is statutory and cannot be enlarged by the actions of the parties. See Freedman v. Commissioner, 71 T.C. 564 (1979). Under section 7476, only specifically defined categories of interested parties may petition this Court for declaratory relief. Petitioners, participants in the Teamsters Fund, are not interested parties with respect to a determination as to the qualified status of the Brewery Workers Fund. Accordingly, petitioners are statutorily barred from petitioning for declaratory relief, and therefore, lack standing to maintain this action. See American New Covenant Church v. Commissioner, supra.11

Failure To Make a Determination

With Respect to the Teamsters Fund

Section 7476(a) provides that a party may request declaratory relief where the Commissioner fails to make a determination with respect to the initial or continuing qualification of a retirement plan if the controversy arises

11See also Jones v. Commissioner, supra.

from a plan amendment or termination. Petitioners, with respect to the portion of the request for a determination as relates to the Teamsters Fund, argue that the Commissioner failed to make a determination.

Regarding the Teamsters Fund, petitioners in their request for a determination, requested "a revocation or modification of the September 28, 1976, determination that held that the amendment to merge the Brewery Fund into the Teamsters Fund did not affect the existing qualified status of the Teamsters Fund." The February 12, 1985, determination, on the other hand, held that the Brewery Workers Fund was qualified prior to its merger and that the partial termination of that Fund did not negatively affect its qualified status. We find that a request for modification or revocation of a determination resulting from a wholly different ruling request than that upon which jurisdiction is based is not such a request for a determination as would form the basis for jurisdiction under section 7476. See New York State Teamsters Conference Pension and Retirement Fund v. Commissioner, T.C. Memo. 1982-594, affd. sub nom. Wenzel v. Commissioner, 707 F.2d 694 (2d Cir. 1983).

Section 7476 grants jurisdiction only in narrowly defined circumstances. See Thompson v. Commissioner, 71 T.C. 32 (1978); Sheppard & Meyers, Inc. v. Commissioner, 67 TC. 26 (1976). It requires that there be a determination or failure to make a determination with respect to initial or continuing qualification of a retirement plan. Petitioners' attempt to challenge the 1976 determination though the 1983 request for a determination does not constitute a request for a determination which may form the basis for jurisdiction under section 7476. See New York State Teamsters Conference Pension and Retirement Fund v. Commissioner, supra. Although petitioners have characterized their request as a request for a determination as to the qualified status of the Teamsters Fund, it is clear that the gravamen of their request is that the Brewery Workers Fund as it existed prior to the merger be declared as not qualified for special tax treatment. This is clearly demonstrated by petitioners' request that the revocation or modification of the 1976 determination be limited to the merger amendment, not the

entire Teamsters Fund. We view this request as a "backdoor" request for a determination that the Brewery Workers Fund, as it existed prior to the merger, was not qualified. We have already decided that petitioners have no standing to request declaratory relief as to a determination concerning the qualified status of the Brewery Workers Fund.12 For the reasons stated herein, respondent former trustees' motion to dismiss for lack of jurisdiction will be granted.

An appropriate order will be entered.

PERCY L. AND LOIS V. BELL, ET AL.,1 PETITIONERS
v. COMMISSIONER OF INTERNAL REVENUE,
RESPONDENT

Docket Nos. 22733-84, 25769-84, Filed May 9, 1988.
37219-84, 37220-84.

R obtained a copy of a criminal indictment, after it had been filed in open court, and used the information contained therein as a basis for the notices of deficiency issued to Ps. Ps contend that R's obtention and use of the indictment was a violation of rule 6(e), Federal Rules of Criminal Procedure (rule 6(e)), which shields from public disclosure matters occurring before the grand jury. R's position is that the filed indictment is a public record and the procurement of a copy thereof and the subsequent use of the information contained therein is reasonable and proper. Neither Ps nor R ever filed a petition for disclosure pursuant to rule 6(e) with the U.S. District Court seeking matters occurring before the grand jury. Held, the indictment filed in the U.S. District Court on Sept. 30, 1982, is a public record. Held, further, R's obtention of a copy of the indictment and his use thereof in formulating the notices of deficiency was reasonable and proper and,

12See note 10 supra, and compare Loftus v. Commissioner, 90 T.C. 845 (1988). 'Cases of the following petitioners are consolidated herewith: Glen A. Jamtgaard and Barbara Jamtgaard, docket No. 25769-84; Donald V. Osborne and Nancy E. Osborne, docket No. 37219-84; and James L. Ramsey and Patricia A. Ramsey, docket No. 37220-84. It has been stipulated that the Court's decision in disposition of these motions will be binding on the following related cases: Edward W. Blanch, Jr., and Jane R. Blanch, docket No. 25768-84; Jack G. Rentschler and Joyce E. Rentschler, docket No. 25770-84; Rudolph J. Hoffman and Shiela J. Hoffman, docket No. 25771-84; Richard C. Garbe and Margaret S. Garbe, docket No. 37218-84; John E. Lawton and Amy S. Lawton, docket No. 1294-85; and Michael T. Peak and Marian O. Peak, docket No. 10551-85.

hence, did not violate the secrecy provisions of rule 6(e).
Held, further, Ps' motion to shift the burden of going forward
with untainted evidence and motion to suppress evidence
improperly attained is denied.

James L. Norris, for the petitioners.
Benjamin A. de Luna, for the respondent.

OPINION

WHITAKER, Judge: Petitioners' motions to shift the burden of going forward with untainted evidence and motion to suppress evidence improperly attained filed herein were assigned to Special Trial Judge Francis J. Cantrel.2 After a review of the record, we agree with and adopt his opinion which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

CANTREL, Special Trial Judge: These cases are presently before the Court on petitioners' motion to shift the burden of going forward with untainted evidence and motion to suppress evidence improperly attained filed in each case.3 A hearing was held on petitioners' motion at Denver, Colorado, at which time a stipulation of facts was filed, some 49 exhibits were received, and oral testimony was heard. The parties have filed original simultaneous briefs and reply briefs.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation of facts, the exhibits attached thereto, and other exhibits received are incorporated herein by this reference.

During 1979 and 1980, William A. Kilpatrick (hereinafter sometimes referred to as Kilpatrick) owned all the outstanding stock of United Financial Operations, Inc. (UFO). During

"These cases were assigned pursuant to sec. 7456 (redesignated as sec. 7443A by the Tax Reform Act of 1986, Pub. L. 99-514, sec. 1556, 100 Stat. 2755) and Rule 180. All section references are to the Internal Revenue Code of 1954 as amended, unless otherwise indicated, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless indicated to the contrary.

3Since each motion is identical in all material respects we will hereinafter characterize them as petitioners' motion.

these years, UFO was in the business of promoting and administering tax shelters.

In 1979, UFO, Kilpatrick, Declan O'Donnell (O'Donnell), and Shiela Lerner (Lerner) promoted Alpha V Real Estate (Alpha V), Information Realty, Ltd. (Information Realty), North Sea Realty, Ltd. (North Sea), and Xanadu Realty, Ltd. (Xanadu), 4 of approximately 21 methanol limited partnerships which were to involve the development of methanol production processes and plants. Petitioners were limited partners in these 4 partnerships. It appears that investments in the methanol partnerships were structured to facilitate a deduction on the Federal income tax return for each partner/investor equal to four (4) times the amount of said investor's cash investment through the use of nonrecourse financing.6

Petitioners Percy L. and Lois V. Bell (hereinafter sometimes called petitioners Bell) filed joint Federal income tax returns with the Internal Revenue Service (IRS), for the taxable years 1979 and 1980. Thereon they claimed losses attributable to North Sea in the respective amounts of $49,511 and $37,241. On the date their timely petition was filed, they resided in Greenville, Mississippi.7

Petitioners Glen A. Jamtgaard and Barbara Jamtgaard (hereinafter sometimes called petitioners Jamtgaard) filed a joint Federal income tax return with the IRS for the taxable year 1979. Thereon they claimed a loss of $99,022 attributable to Information Realty. On the date their timely petition was filed they resided in Sioux Falls, South Dakota.8

Petitioners James L. and Patricia A. Ramsey (hereinafter sometimes called petitioners Ramsey) filed joint Federal

'Methanol is defined as: “a light volatile flammable poisonous liquid alcohol CH OH formed in the destructive distillation of wood or made synthetically and used esp. as a solvent, anti-freeze, or denaturant for ethyl alcohol and in the synthesis of other chemicals." Webster's Ninth New Collegiate Dictionary p. 747 (1983).

"Hereafter, these four partnerships will be referred to collectively as "the partnerships." Use of the words, "methanol partnerships," will refer to the 21 partnerships, which include Alpha V, Information Realty, North Sea, and Xanadu.

"In this connection, it further appears that the methanol partnerships offered a $50,000 tax deduction for every investment of $12,500. With over 300 known investors as of July 30, 1980, the methanol program has already produced first year deductions of over $15 million for 1979. 'In the absence of a stipulation of the parties to the contrary, venue on appeal of this case would lie in the U.S. Court of Appeals for the Fifth Circuit. See sec. 7482(b)(1)(A) and (2).

Venue on appeal of this case, in the absence of a stipulation to the contrary, would lie in the U.S. Court of Appeals for the Eighth Circuit.

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