                          T.C. Memo. 2000-261



                       UNITED STATES TAX COURT



      ABRAHAM LINCOLN OPPORTUNITY FOUNDATION, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4436-99X.                       Filed August 17, 2000.



     Amber Wong Hsu, for petitioner.

     Mark A. Ericson and Laurence D. Ziegler, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:     This case is before us on respondent’s

motion to dismiss for lack of jurisdiction (respondent’s motion)

filed on May 22, 2000.    On June 21, 2000, petitioner filed a

response to that motion (petitioner’s response).      On July 14,

2000, respondent filed a reply to petitioner’s response (respon-

dent’s reply).
                                 -2-

     Respondent represents in respondent’s motion, and petitioner

agrees or does not dispute in petitioner’s response, (1) that

petitioner ceased all operations and dissolved under the laws of

the State of Colorado in 1995 and (2) that on March 5, 1999, when

the petition in this case was filed, all relevant periods of

limitations for any potential tax liability of petitioner and/or

its contributors had expired with respect to 1990 through 1994,

the years to which respondent’s notice of revocation issued on

December 7, 1998 (respondent’s notice of revocation) and that

petition relate.1   According to respondent, the two foregoing

undisputed factual allegations

     clearly renders [sic] this case moot since any decision
     rendered by this Court as to whether or not petitioner
     was an I.R.C. § 501(c)(3) organization during the
     period at issue will have no effect on past contribu-
     tions to petitioner and, “[s]ince petitioner has dis-
     solved itself, any questions concerning the future
     deductibility of contributions by its donors do not
     exist . . . .” National Republican Foundation, T.C.
     Memo. 1988-336.

           9. Accordingly, this case is moot and should be
     dismissed for lack of jurisdiction since there is no
     actual controversy with respect to any issue in the
     case.

     With respect to the dissolution of petitioner under the laws

of the State of Colorado that petitioner concedes occurred in

1995, petitioner argues in petitioner’s response:


     1
      According to petitioner, there is no tax exposure to any-
one, either to petitioner or to any individual and corporate
donors to petitioner, resulting from respondent’s notice of
revocation.
                                -3-

     Whether or not Petitioner lacked legal capacity to file
     Tax Court petitions is based on the law of the juris-
     diction in which it was organized – Colorado. See,
     Starvest US, Inc. v. Commissioner, 78 TCM 475 (1999).
     Colorado law states that “dissolution of a corporation
     does not prevent commencement of a proceeding by or
     against the corporation in its corporate name.” Colo.
     Rev. Stat. Sec. 7-114-105(2)(e). Thus, Petitioner, is
     not barred from commencing this proceeding simply
     because its corporate status has been dissolved; if
     actual tax dollars were involved, there would be no
     question it would have a right to proceed. * * *

     In respondent’s reply, respondent agrees with petitioner

that “state law controls whether a dissolved corporation has the

legal capacity to be a petitioner in a tax deficiency case”.

However, according to respondent,

     this point is irrelevant to the determination of wheth-
     er an actual controversy exists for the purposes of
     I.R.C. § 7428 and/or Tax Court Rule 210(c)(2)(C). A
     deficiency proceeding clearly involves an actual con-
     troversy even when a dissolved corporation is the
     petitioner since an actual tax liability is at issue.
     In the instant case, there is no actual controversy
     since the petitioner ceased its corporate existence
     more than four years prior to filing the petition and
     all relevant statutes of limitations have expired with
     regard to any potential tax liabilities. * * *

     We need not decide whether this case should be dismissed for

lack of jurisdiction on the ground advanced by respondent that

there is no actual controversy in this case for purposes of

section 7428.2   That is because we find on the instant record

that this case must be dismissed for lack of jurisdiction on the


     2
      All section references are to the Internal Revenue Code.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
                               -4-

ground that under the laws of the State of Colorado petitioner

does not have the capacity to engage in litigation in the Court.3

See Rule 60(c).

     Although respondent does not dispute petitioner’s contention

that under the laws of the State of Colorado petitioner “is not

barred from commencing this proceeding simply because its corpo-

rate status has been dissolved”, we do.   In advancing that

contention, petitioner relies on Colo. Rev. Stat. sec. 7-114-

105(2)(e) (1999), which was in effect when petitioner claims it

dissolved in 1995 and when petitioner filed the petition in this


     3
      We also find on the record before us that petitioner is not
interested in prosecuting, and has thus far failed to prosecute,
this case in order to attempt to obtain the only remedy available
to it under sec. 7428, i.e., a declaration with respect to
petitioner’s continuing qualification as an organization de-
scribed in sec. 501(c)(3). We further find on that record that
petitioner is not interested in pursuing its request in the
petition “that this Court issue a declaratory judgment declaring
that Petitioner is recognized as an organization described in
section 501(c)(3) of the Code for the years in issue [1990
through 1994]”. Instead, petitioner asks this Court, as it did
in petitioner’s motion to dismiss filed on Feb. 10, 2000 (peti-
tioner’s Feb. 10, 2000 motion to dismiss), to order respondent to
annul or withdraw respondent’s notice of revocation on the ground
that respondent abused respondent’s discretion in issuing that
notice. According to petitioner, if we were to issue an order
“requiring Respondent’s annulment of Petitioner’s revocation
letter, Petitioner will move to dismiss its own Petition.”
Assuming arguendo that we were not required to dismiss this case
for lack of jurisdiction, what we stated in the Court’s Order
dated Apr. 17, 2000, denying petitioner’s Feb. 10, 2000 motion to
dismiss, would pertain here: “Such summary determination [sought
by petitioner] cannot be made on the record. The remedy avail-
able to petitioner in the event that respondent abused his
discretion in issuing the notice of revocation is a declaratory
judgment as sought in the original petition.”
                                  -5-

case.   However, the provision of Colorado law on which petitioner

relies, which is a provision contained in the Colorado Business

Corporation Act, did not apply to petitioner at those times or at

any other time since it was incorporated.   The administrative

record, which was filed in this case on August 18, 1999, estab-

lishes that petitioner was incorporated in 1984 under the Colo-

rado Nonprofit Corporation Act.    Consequently, it was subject to

the Colorado Nonprofit Corporation Act, and not to the Colorado

Business Corporation Act.

     As pertinent here, section 7-26-120 of the Colorado Non-

profit Corporation Act, Colo. Rev. Stat. Ann. sec. 7-26-120 (West

1990) (repealed 1998), entitled “Survival of remedy after disso-

lution”, provided in pertinent part:

     (1) The dissolution of a corporation in any manner
     shall not take away or impair any remedy available to
     or against such corporation, its directors, officers,
     or members for any right or claim existing or any
     liability incurred prior to the dissolution if action
     or other proceeding thereon is commenced within two
     years after the date of the dissolution; but the fore-
     going limitation shall not apply to any such action
     affecting the title to real estate. Any such action or
     proceeding by or against the corporation may be prose-
     cuted or defended by the corporation in its corporate
     name. The members, directors, and officers have power
     to take such corporate or other action as shall be
     appropriate to protect the remedy, right, or claim.
     * * *

     (2) Notwithstanding any provision of articles 20 to 29
     of this title to the contrary, after dissolution, title
     to any corporate property not distributed or disposed
     of in the dissolution shall remain in the corporation.
     The majority of the surviving members of the last
     acting board of directors as named in the files of the
                                -6-

     secretary of state pertaining to such corporation shall
     have full power and authority to sue and be sued in the
     corporate name and to hold, convey, and transfer such
     corporate property, and, for purposes of suit against
     the corporation, each such director shall be deemed an
     agent for process. * * *

     On the record before us, we find that petitioner has failed

to establish that, when, as the parties agree, petitioner dis-

solved in 1995,4 it retained any property, let alone any real

property.   We conclude on that record that petitioner was re-

quired by Colo. Rev. Stat. Ann. sec. 7-26-120(1) (West 1990)

(repealed 1998) to commence an action for any right or claim that

it had as of the time of its dissolution in 1995 within two years

after the date of that dissolution.5   The petition in this case

was filed on March 5, 1999.   On the record presented, we conclude


     4
      Although the record in this case establishes that the board
of directors of petitioner adopted a resolution on Jan. 3, 1995,
authorizing dissolution of petitioner and that petitioner filed a
“STATEMENT OF INTENT TO DISSOLVE OF A COLORADO NONPROFIT CORPORA-
TION” with the secretary of state of Colorado on or after that
date, the record does not establish the date in 1995 on which
petitioner was considered to be dissolved under the laws of the
State of Colo.
     5
      The two-year limitation in Colo. Rev. Stat. Ann. sec. 7-26-
120(1) (West 1990) (repealed 1998) was repealed when the Colo.
Rev. Nonprofit Corp. Act was enacted. See Colo. Rev. Stat. sec.
7-134-105(3)(d)(1999). However, the Colo. Rev. Nonprofit Corp.
Act applies only to “existing corporate entities”, i.e., entities
in existence on June 30, 1998, the day before the effective date
of the Colo. Rev. Nonprofit Corp. Act, which were incorporated
under the Colo. Nonprofit Corp. Act that was in effect prior to
July 1, 1998. See Colo. Rev. Stat. sec. 7-137-101(1)(a) and (2)
(1999). Petitioner agrees that it was not in existence on June
30, 1998. Consequently, petitioner was not subject to any of the
provisions of the Colo. Rev. Nonprofit Corp. Act, including Colo.
Rev. Stat. sec. 7-134-105(3)(d)(1999).
                                 -7-

that petitioner does not have the capacity under the laws of the

State of Colorado to engage in litigation in the Court.     See

Colo. Rev. Stat. Ann. sec. 7-26-120 (West 1990) (repealed 1998).

Accordingly, we conclude that this case must be dismissed for

lack of jurisdiction.   See Rule 60(c); Bloomington Transmission

Serv., Inc. v. Commissioner, 87 T.C. 586 (1986); Dillman Bros.

Asphalt Co. v. Commissioner, 64 T.C. 793 (1975); Great Falls

Bonding Agency, Inc. v. Commissioner, 63 T.C. 304 (1974).6

     To reflect the foregoing,



                                       An appropriate order will be

                                 entered.




     6
      See also Tezak Constr. Co. v. Commissioner, T.C. Memo.
1993-208.
