                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 13 2013

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



AMA ENTERPRISES, INC,                             No. 11-72954

                Petitioner - Appellant,           Tax Ct. No. 23168-10X

  v.
                                                  MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

                Respondent - Appellee.



                             Appeal from a Decision of the
                               United States Tax Court


                               Submitted June 4, 2013 **
                                 Pasadena, California

Before:         TROTT and W. FLETCHER, Circuit Judges, and STEIN, District
                Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
      AMA Enterprises, Inc. (“AMA”) appeals from the Tax Court’s dismissal for

lack of jurisdiction. AMA filed a petition in the Tax Court under Internal Revenue

Code § 7428, challenging the Internal Revenue Service’s revocation of AMA’s §

501(c)(3) status. The Tax Court held that AMA had not satisfied § 7428(b)(3),

which requires that an organization file a § 7428 petition within ninety-one days of

the Service mailing an adverse-determination letter. Although AMA did file a

petition within the ninety-one day period, its corporate “powers, rights and

privileges” were suspended under California law at the time of the filing. The Tax

Court therefore determined that AMA did not have the capacity to engage in

litigation at the time, as required by Tax Court Rule 60. The court also held that

the subsequent revival of AMA’s corporate powers after the ninety-one day period

did not retroactively satisfy § 7428(b)(3). See David Dung Le, M.D., Inc. v.

Comm’r, 114 T.C. 268 (2000), aff’d, 22 F. App’x. 837 (9th Cir. 2001) (mem).

      We have jurisdiction under 26 U.S.C. § 7482. We affirm the dismissal for

the reasons stated by the Tax Court.

      AFFIRMED.




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