     AMERICAN AIRLINES, INC., PETITIONER v. COMMISSIONER
             OF INTERNAL REVENUE, RESPONDENT

           Docket No. 15957–11.           Filed January 13, 2015.

          P is a domestic corporation operating as an airline, and its
       foreign branches remunerate its foreign flight attendants to
       staff P’s South American routes. P’s South American routes
       include flights from South America to Miami and vice versa.
       During the examination for P’s taxable periods 2003 and
       2004, P and R disputed whether P was liable for employment
       taxes associated with the remuneration paid to the foreign
       flight attendants by its foreign branches. P asserted that it
       was not liable for employment taxes with respect to the for-
       eign flight attendants because (1) P had never treated the for-
       eign flight attendants as employees, and (2) the ‘‘business vis-
       itor exception’’ applied and/or relief was available under the
       Revenue Act of 1978 (RA ’78), Pub. L. No. 95–600, sec. 530,
       92 Stat. at 2885, as amended. R rejected P’s positions and
       assessed employment taxes for those periods. R also issued a
       notice of deficiency raising an alternative income tax theory
       which R contends will apply if it is ultimately decided that P
       is not liable for employment taxes under I.R.C. subtitle
       C. P timely filed a petition in response to the notice of defi-
       ciency determining R’s alternative income tax adjustment and
       in response to R’s denial of P’s RA ’78 sec. 530 claim. The par-
       ties dispute whether this Court has jurisdiction under I.R.C.
       sec. 7436(a) to determine P’s employment tax liabilities.
       I.R.C. sec. 7436(a) provides in pertinent part that ‘‘[i]f, in

24
(24)        AMERICAN AIRLINES, INC. v. COMMISSIONER                      25


       connection with an audit of any person, there is an actual con-
       troversy involving a determination by the Secretary as part of
       an examination that * * * such person is not entitled to the
       treatment under subsection (a) of section 530 of the Revenue
       Act of 1978 * * *, the Tax Court may determine whether
       such a determination by the Secretary is correct and the
       proper amount of employment tax under such determination.’’
       R contends that this Court lacks jurisdiction because RA ’78
       sec. 530 is inapplicable when R does not make a determina-
       tion of worker classification. P asserts that this Court has
       jurisdiction because R determined that P was not entitled to
       RA ’78 sec. 530 relief. Held: R made a determination which
       provides a basis for our jurisdiction to determine whether P
       is entitled to relief under RA ’78 sec. 530 with respect to
       remuneration paid to P’s foreign flight attendants by its for-
       eign branches. Held, further, R’s motion for partial summary
       judgment will be denied. Held, further, P’s motion for partial
       summary judgment will be granted in part.

  Mary Bell Handley Hevener, Robert R. Martinelli, Robert
H. Albaral, and David Gerald Glickman, for petitioner.
  Jeremy H. Fetter, Shelley Turner Van Doran, and Linda P.
Azmon, for respondent.

                                 OPINION

   PARIS, Judge: This case is before the Court on the parties’
cross-motions for partial summary judgment under Rule
121. 1 The issue for decision in the partial summary judg-
ment is whether the Court has jurisdiction pursuant to sec-
tion 7436(a) over respondent’s imposition of employment
taxes for taxable periods 2003 and 2004. The Court holds
that it has jurisdiction.

                               Background
   The record establishes and/or the parties do not dispute
the following. Petitioner was a Delaware corporation with its
principal place of business in Fort Worth, Texas, when it
filed the petition.


  1 Unless otherwise indicated, all section references are to the Internal

Revenue Code as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
26            144 UNITED STATES TAX COURT REPORTS                       (24)


A. Petitioner’s Business and Petitioner’s Workers
   Petitioner is a subsidiary of AMR Corp., one of the largest
commercial airlines in the world. Petitioner has South Amer-
ican air route authority, among others, and runs the routes
and operations in four South American countries: Argentina,
Chile, Colombia, and Peru (South American routes). The
South American routes include flights that originate and
terminate in South America without making landfall in the
United States, as well as flights between South American
cities and Miami, Florida. The South American routes do not
involve any city or airport in the United States besides
Miami.
   This case involves petitioner’s foreign flight attendants
who staff the South American routes. The foreign flight
attendants are domiciled in Argentina, Chile, Colombia, or
Peru. The foreign flight attendants who work on flights that
originate or terminate in Miami are issued restrictive C–1/D
combined transit and crewman visas. 2
   The foreign flight attendants who work on flights between
South America and Miami spend minimal time in the United
States. When they are working on a flight to or from Miami,
time in the United States includes pre- and post-flight time,
flight time in U.S. airspace, rest time in the United States
after a flight to Miami, and FAA-mandated training at least
once per year. The foreign flight attendants typically leave
the United States within 12 hours of arrival and nearly
always leave within 24 hours of arrival. They currently are
paid on a ‘‘block-to-block’’ basis, meaning that they are com-
pensated only for the period beginning when the aircraft
pushes off from the blocks of the departure gate and ending
  2 C–1  and D visas are nonimmigrant visas. Holders of these visas have
not been authorized by the Department of Homeland Security (DHS) to
work in the United States. See 8 U.S.C. sec. 1101(a)(15)(D)(i) (2012); see
also 8 C.F.R. sec. 274a.12(c)(17)(iii) (2011) (listing classes of aliens who
may apply for authorization for work in the United States and including
only foreign airline employees who have been issued B–1 visas); Social Se-
curity Administration’s Program Operations Manual System RM
10211.420G.3 (classifying holders of C–1 and D visas as nonimmigrants
who may not work and cannot apply for employment authorization). Gen-
erally, DHS must authorize nonimmigrant aliens a classification permit-
ting work in the United States to obtain a Social Security number. 20
C.F.R. sec. 422.105 (2004).
(24)        AMERICAN AIRLINES, INC. v. COMMISSIONER                     27


when it arrives at the blocks of the destination gate. The for-
eign flight attendants are uncompensated for any other time
they are required to be at work, including pre- and post-
flight time and training sessions.
   The foreign flight attendants were hired by petitioner’s for-
eign branches (not subsidiaries) in the respective South
American countries, and the branches manage the foreign
flight attendants and pay their salaries. Petitioner’s domestic
payroll headquarters in Tulsa, Oklahoma, does not partici-
pate in the foreign branch payroll. The foreign branches are
responsible for issuing the foreign flight attendants’ checks
(which are paid in the local foreign currency) and with-
holding taxes under the law of the country of origin. The for-
eign branches withhold only the country of origin’s income
taxes and its equivalent social security taxes if applicable.
   Petitioner originally acquired the South American routes
around 1990 from the now-dissolved Eastern Airlines. Peti-
tioner continued Eastern Airlines’ practice of foreign branch
withholding and has never withheld U.S. income or FICA
taxes from the foreign flight attendants’ salaries. Moreover,
petitioner has never paid employment taxes, including FICA
or FUTA taxes, with respect to the foreign flight attendants.
The foreign flight attendants have never submitted Forms
W–4, Employee’s Withholding Allowance Certificate, nor has
petitioner ever issued Forms W–2, Wage and Tax Statement,
to the foreign flight attendants.
B. 1992–96 Audit
  Initially petitioner’s returns for tax periods 1992–96 were
audited. The focus of respondent’s audit was petitioner’s
potential liability for employment taxes 3 relating to the for-
eign flight attendants. Petitioner, then as now, contended
that it was not obligated to pay employment taxes with
respect to the foreign flight attendants because petitioner
was entitled to ‘‘section 530 relief ’’. Respondent’s Appeals
Office (Appeals) fully conceded the employment tax liabilities
  3 In this case, the Court uses the term ‘‘employment taxes’’ as it is de-
fined by sec. 7436(e) to refer to taxes imposed pursuant to subtitle C of
the Internal Revenue Code, including taxes imposed under secs. 3402 (Fed-
eral income tax withholding), 3102 and 3111 (FICA tax), and 3301 (FUTA
tax).
28            144 UNITED STATES TAX COURT REPORTS                       (24)


for the 1992–96 tax periods pursuant to section 530 of the
Revenue Act of 1978 (RA ’78), Pub. L. No. 95–600, 92 Stat.
at 2885, as amended. 4 In the course of the audit, Appeals
created an administrative file, entitled the Appeals Case
Memorandum, summarizing petitioner’s and respondent’s
positions and explaining its conclusions. Petitioner obtained
the Appeals Case Memorandum for the 1992–96 audit
through a Freedom of Information Act request. The Appeals
Case Memorandum states that petitioner is entitled to RA
’78 sec. 530 relief for taxable periods 1992–96 and should be
entitled to relief from employment taxes for workers in
substantially similar positions for other periods. See RA ’78
sec. 530(a)(2)(B). At the close of the audit respondent agreed
not to audit petitioner’s returns on this issue for tax periods
1997–2002.
C. 2003–04 Audit
  Respondent conducted an audit for petitioner’s 2003 and
2004 taxable periods. The focus of the examination was
substantially similar to that of the 1992–96 audit. Petitioner
contended that it was not liable for employment taxes or the
mandatory 30% withholding tax on nonresident aliens under
section 1441 5 with respect to the foreign flight attendants’
salaries because the ‘‘business visitor exception’’ 6 and/or RA
  4 The Revenue Act of 1978 (RA ’78), Pub. L. No. 95–600, sec. 530, 92

Stat. at 2885, as amended, provides in relevant part:
     (a) Termination of Certain Employment Tax Liability.—
     (1) In general.—If—
     (A) for purposes of employment taxes, the taxpayer did not treat an
  individual as an employee for any period, and
     (B) in the case of periods after December 31, 1978, all Federal tax re-
  turns (including information returns) required to be filed by the taxpayer
  with respect to such individual for such period are filed on a basis con-
  sistent with the taxpayer’s treatment of such individual as not being an
  employee, then, for purposes of applying such taxes for such period with
  respect to the taxpayer, the individual shall be deemed not to be an em-
  ployee unless the taxpayer had no reasonable basis for not treating such
  individual as an employee.
  5 Sec. 1441 requires, relevantly, that ‘‘all persons’’ who make payments

to nonresident aliens of specified items constituting U.S. source income
must withhold 30% of the gross income unless an exception or a treaty pro-
vision applies.
  6 The business visitor exception relieves compensation for labor or per-

sonal services performed in the United States from being categorized as
(24)       AMERICAN AIRLINES, INC. v. COMMISSIONER                     29


’78 sec. 530 relief applied. In connection with the 2003–04
examination, respondent issued Technical Advice Memo-
randum (TAM) 201014051 on December 18, 2009. The TAM
concluded that petitioner was liable for employment taxes
with respect to the remuneration paid to foreign flight
attendants for services performed in the United States unless
the ‘‘business visitor exception’’ applied pursuant to sections
861(a)(3) and 864(b)(1). Because the employment tax regime
under subtitle C applied (whether or not the business visitor
exception waived withholding requirements), the TAM held
that the flight attendants’ remuneration was not subject to
withholding under section 1441. See sec. 1.1441–4(b)(1),
Income Tax Regs. Moreover, the TAM stated that ‘‘entitle-
ment to relief under section 530 is not properly at issue in
this case’’ because the case did not involve a worker classi-
fication. 7
   Respondent’s exam team and petitioner did not reach an
agreement, and respondent sent petitioner a 30-day letter on
February 3, 2010. On March 11, 2010, petitioner timely sent
a formal protest challenging the 30-day letter on the basis of
petitioner’s continuously maintained position that it is
eligible for RA ’78 sec. 530 relief with respect to the remu-
neration paid to the foreign flight attendants by the foreign
branches for services performed in the United States. Peti-
tioner and its representatives had several conferences with
Appeals but did not settle the case. As in the first audit,
Appeals created an Appeals Case Memorandum, this time
stating: ‘‘The classification of the NRA flight attendants
(under section 530) is not relevant in this case, other than
it was cited by Appeals as a basis for granting complete relief
in a prior cycle. Accordingly, although Appeals has concluded

U.S. source income if: (1) the labor or services are performed by a non-
resident alien who is present in the United States 90 days or less during
the taxable year; (2) the compensation does not exceed $3,000; and (3) the
labor or services are performed, relevantly, for a foreign branch of a do-
mestic corporation. Sec. 861(a)(3).
  7 The TAM stated, and respondent contends, that petitioner has not in

any way affirmatively treated the individuals as nonemployees, and there-
fore respondent is not attempting to reclassify them from nonemployees to
employees and RA ’78 sec. 530 relief is not relevant. Petitioner claims in
regard to the foreign flight attendants that RA ’78 sec. 530 relief may be
available whether or not there has been an employee classification.
30          144 UNITED STATES TAX COURT REPORTS              (24)


that entitlement to relief under section 530 is not properly at
issue in this case, it has been addressed since it was the
basis for concession when last considered.’’
   At this point respondent took a bifurcated approach to
petitioner’s tax liabilities. On April 14, 2011, respondent sent
petitioner a notice of deficiency determining that pursuant to
section 1441 petitioner was liable for a 30% withholding tax
on the foreign flight attendants’ U.S. source income for 2003
and 2004. The deficiencies totaled $796,654. Respondent did
not issue a formal notice of determination of worker classi-
fication with respect to employment taxes. However, on April
25, 2011, respondent assessed employment taxes under sub-
title C in the amounts of $549,810.73 for liabilities from
Form 940, Employer’s Annual Federal Unemployment
(FUTA) Tax Return, and $3,302,226.76 for liabilities from
Form 941, Employer’s Quarterly Federal Tax Return, plus
interest and penalties, for the 2003 and 2004 taxable periods.
Petitioner timely filed a petition with this Court on July 7,
2011.
   Petitioner paid the assessed employment taxes on May 9,
2011. Petitioner filed a timely administrative refund claim
that was denied by Appeals on August 22, 2013. The notice
of disallowance said that petitioner could seek review in
either a U.S. District Court or the U.S. Court of Federal
Claims within two years of the notice. To the best of the
Court’s knowledge, petitioner has not filed a refund claim in
either court to date.
   Respondent asserts that the determinations reflected in
the notice of deficiency, although it was issued first, is a sec-
ondary, alternative position to protect the Government’s
interest if respondent’s assessment of employment taxes is
successfully challenged by petitioner in an appropriate
refund forum. Respondent agrees that if subtitle C applies,
section 1441 is automatically inapplicable. See sec. 1.1441–
4(b)(1), Income Tax Regs.
   In the petition, petitioner challenges respondent’s deter-
minations under section 1441 (the only determinations
reflected in the notice of deficiency) and also asserts that this
Court has jurisdiction to decide whether petitioner is liable
for employment taxes under subtitle C even though
respondent has not issued a notice of determination of
worker classification. On September 6, 2013, petitioner filed
(24)       AMERICAN AIRLINES, INC. v. COMMISSIONER                      31


a motion for partial summary judgment asking the Court to
hold that it has jurisdiction over both the section 1441 liabil-
ities on the basis of the notice of deficiency and the employ-
ment tax liabilities on the basis that respondent made a
determination with respect to those employment taxes. On
December 16, 2013, respondent filed his own motion for par-
tial summary judgment asserting that the Court does not
have jurisdiction over the employment tax liabilities because
respondent did not issue a notice of determination of worker
classification.

                               Discussion
  The Tax Court is a court of limited jurisdiction and may
exercise jurisdiction only when Congress has expressly
authorized it to do so. See sec. 7442; Breman v. Commis-
sioner, 66 T.C. 61, 66 (1976); see also Rule 13(b). The Court
has jurisdiction to determine whether it has jurisdiction over
a particular case. Kluger v. Commissioner, 83 T.C. 309, 314
(1984). Moreover, the Court’s jurisdiction cannot be enlarged
by the parties’ agreement, or waiver, or failure to object.
Romann v. Commissioner, 111 T.C. 273, 281 (1998).
A. Section 7436(a)
  The parties disagree about the scope of the Court’s juris-
diction under section 7436(a). Section 7436 was enacted as
part of the Taxpayer Relief Act of 1997, Pub. L. No. 105–34,
sec. 1454(a), 111 Stat. at 1055, and grants the Court limited
jurisdiction over cases involving employment taxes imposed
under subtitle C. Section 7436(a), as amended by the
Consolidated Appropriations Act, 2001, Pub. L. No. 106–554,
sec. 314(f), 114 Stat. at 2763A–643 (2000), provides:
    SEC. 7436(a). CREATION OF REMEDY.—If, in connection with an audit
  of any person, there is an actual controversy involving a determination
  by the Secretary as part of an examination that—
      (1) one or more individuals performing services for such person are
    employees of such person for purposes of subtitle C, or
      (2) such person is not entitled to the treatment under subsection (a)
    of section 530 of the Revenue Act of 1978 with respect to such an indi-
    vidual,
  upon the filing of an appropriate pleading, the Tax Court may determine
  whether such a determination by the Secretary is correct and the proper
  amount of employment tax under such determination. Any such redeter-
32            144 UNITED STATES TAX COURT REPORTS                   (24)


 mination by the Tax Court shall have the force and effect of a decision
 of the Tax Court and shall be reviewable as such.

   As the Court has noted previously: ‘‘[I]n response to the
expressed intent of Congress to provide a convenient, prepay-
ment hearing, this Court and the Courts of Appeals have
given the jurisdictional provisions a broad, practical construc-
tion rather than a narrow, technical meaning.’’ Lewy v.
Commissioner, 68 T.C. 779, 781 (1977) (fn. refs. omitted).
Therefore, where a statute is capable of various interpreta-
tions, the Court is inclined to ‘‘adopt a construction which
will permit the Court to retain jurisdiction without doing
violence to the statutory language.’’ Smith v. Commissioner,
140 T.C. 48, 51 (2013).
B. Section 7436(a)(1) and (2)
   Petitioner contends that the Court has jurisdiction in this
case under section 7436(a)(1) and (2), while respondent
asserts that the Court does not have jurisdiction under either
paragraph. The Court need not consider the parties’ conten-
tions relative to section 7436(a)(1) in light of our holding
below relative to our jurisdiction under paragraph (2).
   Four requirements must be satisfied before the Court has
jurisdiction under section 7436(a)(2). There must be: (1) an
examination in connection with the audit ‘‘of any person’’; (2)
a determination by the Secretary that ‘‘such person is not
entitled to the treatment under subsection (a) of section 530
of the Revenue Act of 1978 with respect to such an indi-
vidual’’; (3) an ‘‘actual controversy’’ involving the determina-
tion as part of an examination; and (4) the filing of an appro-
priate pleading in the Tax Court. Sec. 7436(a). Requirements
(1) and (4) are clearly satisfied, and respondent does not
object. The remaining issues are whether there was an actual
controversy and a determination that petitioner is not enti-
tled to treatment under RA ’78 sec. 530.
     1. The ‘‘actual controversy’’ Requirement Under Section
        7436(a)(2)
   Section 7436(a)(2) requires that the Secretary’s determina-
tion be related to an ‘‘actual controversy’’. The record clearly
indicates an actual controversy. The parties disputed peti-
tioner’s entitlement to RA ’78 sec. 530 treatment during the
(24)      AMERICAN AIRLINES, INC. v. COMMISSIONER            33


1992–96 audit and the 2003–04 audit. The Commissioner
issued a TAM in connection with the 2003–04 examination
on December 18, 2009. On February 3, 2010, respondent sent
petitioner a 30-day letter proposing changes to its employ-
ment tax liabilities for the 2003 and 2004 taxable periods.
After petitioner submitted a formal protest in which it
continued to claim relief under RA ’78 sec. 530, the Appeals
Office considered the 2003–04 audit, including the issue of
RA ’78 sec. 530 relief, and described its findings in an
Appeals Case Memorandum. All three of these documents
show an actual controversy regarding petitioner’s qualifica-
tion for RA ’78 sec. 530 relief. Specifically, the 30-day letter
states that ‘‘[t]here is a question whether the taxpayer is
entitled to relief under section 530 of the Revenue Act of
1978 from any U.S. employment tax liability with respect to
the remuneration paid to the NRA flight attendants.’’ The
30-day letter further summarizes petitioner’s positions,
quotes petitioner’s assertions at length, and then rejects
them. The TAM and the Appeals Case Memorandum simi-
larly acknowledge that there is a disagreement between the
parties.
   Respondent argues that for this Court to have jurisdiction
section 7436(a)(2) requires an actual controversy regarding
employment status as well as RA ’78 sec. 530 relief. How-
ever, the plain language of the statute indicates that there
need only be an actual controversy regarding RA ’78 sec. 530
relief. See Charlotte’s Office Boutique, Inc. v. Commissioner,
425 F.3d 1203, 1211 (9th Cir. 2005) (finding an actual con-
troversy even after the Commissioner conceded that the tax-
payer had treated its president and director as an employee
for the relevant taxable periods), aff ’g as supplemented 121
T.C. 89 (2003). Respondent has provided no convincing
authority that there must be an actual controversy about the
employment status of a taxpayer’s workers. Accordingly, the
Court finds that the ‘‘actual controversy’’ requirement has
been satisfied.
  2. The Determination Under Section 7436(a)(2) That Peti-
     tioner Was Not Entitled to RA ’78 Sec. 530 Relief
   Next the Court considers whether respondent made a
‘‘determination’’ under section 7436(a)(2). The absence of a
notice of determination of worker classification or any other
34            144 UNITED STATES TAX COURT REPORTS                         (24)


document bearing a particular title does not bar our jurisdic-
tion. 8 SECC Corp. v. Commissioner, 142 T.C. 225, 231
(2014); see Gray v. Commissioner, 138 T.C. 295, 303–304
(2012) (holding that the Court has jurisdiction pursuant to
section 6404(h) when the Secretary’s determination
regarding interest abatement is memorialized in a notice of
determination concerning collection action(s) under section
6320 and/or 6330), supplemented by 140 T.C. 163 (2013); Wil-
son v. Commissioner, 131 T.C. 47, 52–53 (2008) (holding that
the Court lacked jurisdiction upon the Commissioner’s
issuance of a notice of determination concerning collection
action(s) under section 6320 and/or 6330 after the taxpayer’s
equivalent hearing). The existence of a determination with
respect to RA ’78 sec. 530 relief is sufficient to support the
Court’s jurisdiction. See SECC Corp. v. Commissioner, 142
T.C. at 231. A determination may manifest itself in nontradi-
tional ways and need not be memorialized in a particular for-
mat. See H.R. Rept. No. 105–148, at 639 (1997), 1997–4 C.B.
(Vol. 1) 319, 961 (stating in the explanation of provision of
section 7436 that ‘‘one way the IRS could make the required
determination is through a mechanism similar to the employ-
ment tax early referral procedures’’). For example, according
to legislative history, a ‘‘failure to agree’’ may constitute a
determination under section 7436(a). S. Rept. No. 105–33, at
304 (1997), 1997–4 C.B. (Vol. 2) 1081, 1384; see SECC
Corp. v. Commissioner, 142 T.C. at 232; see also Caltex Oil
Venture v. Commissioner, 138 T.C. 18, 34 (2012) (‘‘It is well
settled that where a statute is ambiguous, we may look to
legislative history to ascertain its meaning.’’ (citing Bur-
lington N. R.R. v. Okla. Tax Comm’n, 481 U.S. 454, 461
(1987))). In this case, respondent’s assessment of employment
taxes was obviously a memorialization of his determination.
   As described above, petitioner’s returns were first audited
on employment taxes for the 1992–96 taxable periods.
Respondent’s administrative file for those periods contains an
Appeals Case Memorandum that addresses substantially the
same issues regarding employment tax liability as the 2003–
  8 It is the determination, not the piece of paper, that provides a basis for

our jurisdiction. See SECC Corp. v. Commissioner, 142 T.C. 225, 231,
(2014).
(24)        AMERICAN AIRLINES, INC. v. COMMISSIONER                         35


04 audit. The 1992–96 Appeals Case Memorandum states in
relevant part:
  Taxpayer should be entitled to future relief from similar employment
  [tax liabilities] in subsequent years. Pursuant to Section 530 of the Rev-
  enue Act of 1978 as amplified by Revenue Procedure 85–18, employment
  related taxes may not be assessed against a person who is treating those
  performing services not as an employee if that individual has a reason-
  able basis for not treating as such. Reasonable basis includes a past IRS
  audit of the taxpayer, if the audit entailed no assessment attributable
  to the taxpayer’s employment tax treatment of the individuals holding
  positions substantially similar to the position held by the individual
  whose status is at issue.
  Since Appeals has determined that these particular employees should
  not be treated as employees for FICA, FIT and FUTA, such determina-
  tion is tantamount to a past IRS audit.

   Despite this concession pertaining to the 1992–96 taxable
periods, respondent iterated his position that petitioner was
not entitled to RA ’78 sec. 530 relief for the 2003 and 2004
taxable periods at least three different times throughout the
audit process. 9
   The TAM, the 30-day letter, and the Appeals Case Memo-
randum for the 2003 and 2004 taxable periods all contain a
substantially similar analysis and nearly identical wording
discussing petitioner’s RA ’78 sec. 530 relief claim. The three
documents each acknowledge that petitioner claimed entitle-
ment to such relief, describe legislative history and caselaw
about RA ’78 sec. 530, and conclude that RA ’78 sec. 530 ‘‘is
not properly at issue in this case.’’ The Appeals Case Memo-
randum for 2003–04 also acknowledges that in the 1992–96
audit Appeals concluded that petitioner was entitled to RA
’78 sec. 530 relief but nevertheless concluded, without
explaining the distinction from the 1992–96 audit, that RA
’78 sec. 530 relief was inapplicable here.
   The 30-day letter specifically states that ‘‘[t]here is a ques-
tion whether the taxpayer is entitled to relief under section
530 of the Revenue Act of 1978 from any U.S. employment
tax liability with respect to the remuneration paid to the
  9 The record does not reveal what, if anything, changed between the two

audits such that petitioner was determined to be no longer entitled to RA
’78 sec. 530 relief. See, e.g., RA ’78 sec. 530(a)(3) (denying relief if an em-
ployer treated any individual holding a substantially similar position to
the position held by the individual whose status is at issue as an employee
for any period beginning after December 31, 1977).
36            144 UNITED STATES TAX COURT REPORTS                      (24)


NRA flight attendants.’’ It also summarizes petitioner’s argu-
ments that RA ’78 sec. 530 should apply, including a
quotation spanning two pages from a letter that petitioner
sent to respondent on May 12, 2009. The 30-day letter also
contains the words ‘‘CONCLUSION: Section 530 is irrelevant
because this case does not involve the issue of worker classi-
fication’’ in bold print.
   These three documents show a clear ‘‘failure to agree’’ on
the issue of RA ’78 sec. 530 relief. See SECC Corp. v.
Commissioner, 142 T.C. at 233 (looking at a 30-day letter, an
Appeals Case Memorandum, and a letter regarding assess-
ment to decide whether the Commissioner had made a deter-
mination under section 7436(a)). They all recognize peti-
tioner’s position regarding RA ’78 sec. 530 and reject that
position. The 30-day letter and the Appeals Case Memo-
randum also state the amounts of the proposed adjust-
ments. 10
   Respondent assessed the employment taxes on April 25,
2011, in the amounts of $549,810.73 for Form 940 liabilities
and $3,302,226.76 for Form 941 liabilities, finding that RA
’78 sec. 530 relief is inapplicable for the 2003–04 taxable
periods. The Court finds that respondent’s decision to assess
employment tax was preceded by a determination rejecting
petitioner’s RA ’78 sec. 530 claim as explained in the TAM,
the 30-day letter, and the Appeals Case Memorandum.
     3. A Determination of Worker Classification as a Jurisdic-
        tional Prerequisite Under Section 7436(a)(2)
  Respondent contends that this Court lacks jurisdiction
under section 7436(a)(2) unless respondent makes a deter-
mination of worker classification. Respondent contends that
because petitioner has always treated its foreign flight
  10 Respondent argues that the ‘‘failure to agree’’ standard is unworkable

because respondent could make a determination without petitioner’s ever
knowing about it or without knowing precisely when it was made. The
Court addressed these arguments in SECC Corp. v. Commissioner, 142
T.C. at 239, with regard to when the period allowed by statute to file a
petition in the Tax Court begins to run. In that case, relying on the text
of sec. 7436(b)(2), the Court held that a 90-day (or any other) time limit
does not apply where the Commissioner does not send a notice by certified
or registered mail. Id. at 243. Therefore, a taxpayer is not harmed when
the Commissioner makes a determination but does not send formal notice.
(24)        AMERICAN AIRLINES, INC. v. COMMISSIONER                       37


attendants as employees, 11 respondent had no need to make
a determination of worker classification, and therefore the
Court does not have jurisdiction under section 7436(a)(2).
Whether petitioner has ever treated its foreign flight attend-
ants as employees is a disputed material fact not appro-
priately decided on summary judgment. However, it is
unnecessary at this stage to analyze how petitioner treated
its foreign flight attendants because section 7436(a)(2) does
not require that respondent make a determination of worker
classification.
   Respondent asserts that RA ’78 sec. 530 relief is unavail-
able when there has been no determination of worker classi-
fication. This proposition seems doubtful. See RA ’78 sec.
530(e)(3) (‘‘Nothing in this section shall be construed to pro-
vide that subsection (a) only applies where the individual
involved is otherwise an employee of the taxpayer.’’); S. Rept.
No. 104–281, at 26 (1996), 1996 U.S.C.C.A.N. 1474, 1500
(explaining that an amendment to RA ’78 sec. 530 in the
Small Business Job Protection Act of 1996, Pub. L. No. 104–
188, sec. 1122, 110 Stat. at 1766, adding subsection (e) ‘‘is
intended to reverse the IRS position * * * that there first
must be a determination that the worker is an employee
under the common law standards before application of sec-
tion 530’’). The Court need not decide this question today,
however, because it goes to the merits of an RA ’78 sec. 530
claim—that is, whether a taxpayer is entitled to relief under
that section. But that is not the question before the Court.
Rather, the question before the Court is jurisdictional, and
the Court need not consider the requirements of RA ’78 sec.
530 here. Instead, the Court looks to the statute that pro-
vides our jurisdiction in the instant case, section 7436(a).
   Section 7436 is titled ‘‘Proceedings for Determination of
Employment Status’’, and subsection (a) is titled ‘‘Creation of
Remedy.’’ Respondent suggests that these titles show that
the Court’s jurisdiction is limited to instances where a deter-
mination of worker classification was made. It is a well-
accepted tenet of statutory construction that ‘‘the title of a
statute and the heading of a section cannot limit the plain
meaning of the text.’’ Bhd. of R.R. Trainmen v. Balt. & O.R.
  11 Petitioner disputes this fact and contends that it has never treated the

foreign flight attendants as employees.
38          144 UNITED STATES TAX COURT REPORTS                     (24)


Co., 331 U.S. 519, 528–529 (1947); see Strathearn S.S. Co. v.
Dillon, 252 U.S. 348, 354 (1920); Cornell v. Coyne, 192
U.S. 418, 430 (1904); United States v. Fisher, 6 U.S. (2
Cranch) 358, 386 (1805); Stanley Works & Subs. v. Commis-
sioner, 87 T.C. 389, 419 (1986). Titles are not meant to over-
ride or substitute for the provisions of the text; neither are
they meant as reference guides or synopses. Bhd. of R.R.
Trainmen, 331 U.S. at 528–529. They are available as a tool
when helpful to resolve an ambiguous provision but may fail
even as that because ‘‘matters in the text which deviate from
those falling within the general pattern are frequently
unreflected in the headings and titles.’’ Id. Therefore, the
title of section 7436 need not be read to limit the section to
instances when the Secretary has made a determination of
worker classification.
   We next turn to the text of section 7436(a). As discussed
above, section 7436(a) grants the Court jurisdiction when,
among other requirements, there is an actual controversy
involving a determination by the Secretary that
   (1) one or more individuals performing services for such person are
 employees of such person for purposes of subtitle C, or
   (2) such person is not entitled to the treatment under subsection (a)
 of section 530 of the Revenue Act of 1978 with respect to such an indi-
 vidual * * *.
   [Emphasis added.]

   Here the word ‘‘or’’ is vital. ‘‘The plain meaning of legisla-
tion * * * [is] conclusive, except in the ‘rare cases [in which]
the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.’ ’’
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242
(1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982)); see Pollock v. Commissioner, 132 T.C. 21, 30
(2009) (‘‘We look past plain meaning to determine congres-
sional intent only if the language is ambiguous, applying the
plain meaning would lead to an absurd result, or (maybe)
where there is clear evidence of contrary legislative intent.’’).
By inserting the word ‘‘or’’ between paragraphs (1) and (2) of
section 7436(a), Congress unambiguously indicated that the
two provisions must be read in the disjunctive. Congress
divorced a determination of worker classification from a
determination of denial of RA ’78 sec. 530 relief with the
(24)      AMERICAN AIRLINES, INC. v. COMMISSIONER            39


word ‘‘or’’, and the Court has no reason to look past this
plain meaning.
   This reading does not lead to an absurd result or obstruct
legislative intent. This reading of section 7436 comports with
other accepted rules of statutory interpretation. The Court
must ‘‘ ‘give effect, if possible, to every clause and word of a
statute’ ’’ and, whenever possible, read a statute so that no
portion of it is rendered superfluous. United States v.
Menasche, 348 U.S. 528, 538–539 (1955) (quoting Inhabitants
of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 (1883)); see
Guardian Indus. Corp. v. Commissioner, 143 T.C. 1, 14–15
(2014); Caltex Oil Venture v. Commissioner, 138 T.C. at 30.
If section 7436(a)(2) were read as requiring a determination
of worker classification, the entire paragraph would be ren-
dered superfluous. Paragraph (1) already addresses our juris-
diction when the Secretary has made a determination of
worker classification. If this requirement were also embedded
in paragraph (2), Congress would have no need to specify
that the Court has jurisdiction when the Secretary has made
a determination of worker classification and when there has
been a denial of relief under RA ’78 sec. 530. This scenario
would be encapsulated in paragraph (1), and paragraph (2)
would essentially be nothing but an example of an issue that
might accompany a determination of worker classification.
   Finally, section 7436(a)(2) does not limit the Court’s juris-
diction to instances where the Secretary has made a deter-
mination of worker classification. As stated above, section
7436(a)(2) grants us jurisdiction when there is a determina-
tion that ‘‘such person is not entitled to the treatment under
subsection (a) of section 530 of the Revenue Act of 1978 with
respect to such an individual’’. Nothing in the language of
the statute requires a determination of worker classification
before the Court has jurisdiction over the Secretary’s deter-
mination under RA ’78 sec. 530. Although neither party
asserts that the phrase ‘‘with respect to such an individual’’
in section 7436(a)(2) imposes this additional jurisdictional
prerequisite, the Court addresses this phrase for the sake of
completeness. See Neely v. Commissioner, 115 T.C. 287, 290
(2000) (stating that the Court may question its own jurisdic-
tion sua sponte). The Court finds that the phrase ‘‘with
respect to such an individual’’ does not require that the Sec-
retary first determine the individual to be an employee
40           144 UNITED STATES TAX COURT REPORTS                      (24)


before jurisdiction arises. The adjective ‘‘such’’ relates back to
the individuals described in section 7436(a)(1). The term
‘‘individuals’’ in section 7436(a)(1) is modified by the present
participle phrase ‘‘performing services for such person’’ and is
not defined in the first instance by reference to ‘‘employees’’.
Therefore, the individuals that section 7436(a)(2) refers to
are workers who are performing services, and they need not
be classified as employees before section 7436(a)(2) jurisdic-
tion arises.
   Accordingly, the Court holds that it may have jurisdiction
under section 7436(a)(2) whether or not the Secretary has
made a determination of worker classification. Respondent
has made a determination to deny petitioner relief under RA
’78 sec. 530, thereby fulfilling the final jurisdictional predi-
cate of section 7436(a)(2).
C. Conclusion
   All the jurisdictional predicates of section 7436(a)(2) have
been satisfied, and the Court holds that it has jurisdiction
over both the RA ’78 sec. 530 determination and the notice
of deficiency asserting liability under section 1441. Peti-
tioner’s motion for partial summary judgment will be granted
in part, 12 and respondent’s motion for partial summary judg-
ment will be denied.
   To reflect the foregoing,
                               An appropriate order will be issued.

                            f




  12 TheCourt will grant petitioner’s motion for partial summary judgment
insomuch as it relates to our jurisdiction pursuant to sec. 7436(a)(2). We
do not address petitioner’s argument in its motion for partial summary
judgment regarding our jurisdiction pursuant to sec. 7436(a)(1).
