                        T.C. Memo. 2005-298



                      UNITED STATES TAX COURT



              ISABELLE BICHINDARITZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16098-03.             Filed December 29, 2005.



     Scott A. Schumacher, for petitioner.

     Catherine L. Campbell, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent determined a deficiency in

petitioner’s Federal income tax of $1,776 for 2001.
                               - 2 -

     After petitioner’s concession,1 the issues for decision are

whether petitioner may deduct for 2001 (1) $1,916 that she paid

to a French retirement plan, and (2) real estate taxes.   We hold

that she may not.

     Unless otherwise stated, section references are to the

Internal Revenue Code as amended and in effect in the year in

issue, and Rule references are to the Tax Court Rules of Practice

and Procedure.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

     Petitioner resided in Seattle, Washington, when the petition

was filed.   In 2001, petitioner was a citizen of France and a

resident of the United States for tax purposes.

     In 2001, petitioner was a professor at the University of

Washington, Central Washington University, and Evergreen State

College.   In 2001, Central Washington University contributed

$4,653.22 on petitioner’s behalf to a retirement plan in the

United States, and petitioner paid the equivalent of $1,916 to a

pension plan in France (French pension plan).

     Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for 2001, reported that she was married filing


     1
        Petitioner concedes that she failed to report $3,396 of
income from Evergreen State College on her Form 1040 for 2001 as
determined by respondent.
                               - 3 -

separately, and deducted $1,916 for a payment to an individual

retirement account (IRA).

                              OPINION

A.   Whether Petitioner May Deduct $1,916 That She Paid to Her
     French Pension Plan in 2001

     1.   Petitioner’s Contentions and Background

     Petitioner contends that $1,916 that she paid to a French

pension plan in 2001 is deductible under section 219(a) and

article 18(2)(a)2 of the Convention for the Avoidance of Double


     2
        Art. 18(2)(a) and (b) of the Convention for the Avoidance
of Double Taxation and the Prevention of Fiscal Evasion with
Respect to Taxes on Income and Capital, Aug. 31, 1994, U.S.-
France, 2 Tax Treaties (CCH) par. 3001.19, as modified by
applicable subsequent agreements, as in effect in 2001 provides
in pertinent part:

     2. (a) In determining the taxable income of an
     individual who renders personal services and who is a
     resident of a Contracting State but not a national of
     that State, contributions paid by, or on behalf of,
     such individual to a pension or other retirement
     arrangement that is established and maintained and
     recognized for tax purposes in the other Contracting
     State shall be treated in the same way for tax purposes
     in the first-mentioned State as a contribution paid to
     a pension or other retirement arrangement that is
     established and maintained and recognized for tax
     purposes in that first-mentioned State, provided that
     the competent authority of the first-mentioned State
     agrees that the pension or other retirement arrangement
     generally corresponds to a pension or other retirement
     arrangement recognized for tax purposes by that State.


          (b)   For the purposes of subparagraph (a):

     *        *        *        *        *        *         *
     (ii) where the competent authority of the United States
                                                    (continued...)
                              - 4 -

Taxation and the Prevention of Fiscal Evasion with Respect to

Taxes on Income and Capital (the 1994 U.S./French Tax

Convention), Aug. 31, 1994, U.S.-France, 2 Tax Treaties (CCH)

par. 3001.19, as modified by applicable subsequent agreements, as

in effect in 2001.

     Article 18(2)(a) of the 1994 U.S./French Tax Convention

provides that contributions to a French retirement plan generally

are treated in computing U.S. tax as though they were paid to a

pension or other retirement arrangement established and

recognized for tax purposes in the United States if the competent

authority of the United States agrees that the French pension or

other retirement plan generally corresponds to a pension or other

retirement arrangement recognized for tax purposes by the United

States.

     Section 219(a) provides that an individual taxpayer may

deduct qualified retirement contributions made in the taxable


     2
      (...continued)
     agrees that a mandatory French pension or other
     retirement arrangement generally corresponds to a
     United States pension or other retirement arrangement
     (without regard to the mandatory nature of such
     arrangement), it is understood that contributions to
     the French pension or other retirement arrangement
     shall be treated in the United States in the same way
     for tax purposes as contributions to the United States
     pension or other retirement arrangement; and

     (iii) a pension or other retirement arrangement is
     recognized for tax purposes in a State if the
     contributions to the arrangement would qualify for tax
     relief in that State.
                                - 5 -

year.   A qualified retirement contribution is (1) “any amount

paid in cash for the taxable year by or on behalf of an

individual to an individual retirement plan for such individual’s

benefit”, sec. 219(e)(1), and (2) “any amount contributed on

behalf of any individual to a plan described in section

501(c)(18)”, sec. 219(e)(2).

     Section 501(c)(18) describes trusts that are exempt from

taxation.   A trust may qualify under section 501(c)(18) if:    (1)

It was created before June 25, 1959, as part of a plan providing

for the payment of benefits under a pension plan funded only by

contributions of employees; (2) it is impossible at any time

before all liabilities are satisfied with respect to employees

under the plan for any part of the corpus or income to be (within

the taxable year or thereafter) used for any purpose other than

the providing of benefits under the plan; and (3) benefits are

payable to employees under a classification provided in the plan

which does not discriminate in favor of employees who are highly

compensated (within the meaning of section 414(q)).

     On her Form 1040, petitioner deducted the $1,916 payment as

a qualified retirement contribution to an individual retirement

account (IRA).    She contended in her pretrial memorandum and at

trial that she properly deducted that amount as an IRA

contribution.    In the opening brief, respondent argued that

section 219(g)(5) limits IRA deductions for active participants
                               - 6 -

in a plan established by the Government or by an agency or

instrumentality of the Government and that petitioner

participated in such a retirement plan with Central Washington

University in 2001.

     2.   Whether Petitioner May Contend That She Made Payments
          to an Entity that Qualifies as a Trust Under Section
          219(e)(2)

     Petitioner contended for the first time in her posttrial

brief3 that her $1,916 payment to a French pension plan in 2001

qualified as a retirement contribution under section 219(e)(2)

because she paid it to an entity that generally corresponds to a

trust as defined in section 501(c)(18).    Respondent asserts that

petitioner raised that issue untimely.    We agree.

     Generally, we do not consider an issue raised for the first

time on brief.   See DiLeo v. Commissioner, 96 T.C. 858, 891

(1991), affd. 959 F.2d 16 (2d Cir. 1992); Torres v. Commissioner,

88 T.C. 702, 718 (1987); Seligman v. Commissioner, 84 T.C. 191,

198-199 (1985), affd. 796 F.2d 116 (5th Cir. 1986); Philbrick v.

Commissioner, 27 T.C. 346, 353 (1956); Hettler v. Commissioner,

16 T.C. 528, 535 (1951).   Petitioner raised this issue too late

for either party to offer relevant evidence.    At trial,

respondent had no reason to, and did not, offer evidence relating

to whether petitioner’s French pension plan generally



     3
        Respondent filed an opening brief, petitioner filed an
answering brief, and respondent filed a reply brief.
                                 - 7 -

corresponded to a trust or whether it met the requirements of

section 501(c)(18).    Therefore, respondent would be prejudiced if

petitioner were permitted to raise this issue after trial.

     3.   Whether Petitioner Paid $1,916 to an Entity That
          Generally Corresponds to a Trust As Defined in Section
          501(c)(18)

     Petitioner contends that the French pension plan to which

she paid $1,916 in 2001 generally corresponds to a trust as

defined by section 501(c)(18).    Even if we considered this

argument, petitioner would not prevail.

     Petitioner has not shown that the French pension plan to

which she contributed generally corresponded to a trust under

section 501(c)(18).4   Petitioner testified that (1) the French

pension plan was limited to permanent public employees, (2) the

plan would pay her a taxable annuity after she reaches age 60,

(3) the plan has no survivor benefits, and (4) she would lose all

benefits under the plan if she stopped contributing to it.

     The record includes a summary of a tax convention signed by

representatives of France and the United States on July 28, 1967.

Exhibit 12-P (in French) and 16-P (English translation of Exhibit

12-P) consists of three documents.       The first document is a



     4
        Petitioner has the burden of proof. The burden of
proving a factual issue relating to liability for tax shifts to
the Commissioner under certain circumstances. Sec. 7491(a).
Petitioner does not contend that sec. 7491 applies. Thus,
petitioner bears the burden of proof. See Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933).
                               - 8 -

certificate signed by the general secretary of the Union

Nationale des Mutuelles Retraite des Instituteurs et des

Fonctionnaires de l’Education Nationale et de la Fonction

Publique (MRF) on February 28, 2002.    That document states that

petitioner was saving through an intermediary of MRF’s known as

Caisses Autonomes, a soldier’s benefit society annuity with the

participation (not further described in the record) of France.

It also states that contributions are deductible if the pension

does not exceed the maximum current threshold, which was the

equivalent of 01372.72 (euros) in 2001.

     The second document is an undated letter to petitioner from

Union Mutualistic Retraite (UMR) responding to her request dated

July 11, 2003, to change her contributions.

     The third document appears to (1) be excerpts from an

article by the Direction des Retraites CDC (not otherwise

described in the record), about (a) French parliamentary debates

on French pensions and retirement system and (b) new retirement

products that are the result of an ordinance dated April 19,

2001; and (2) a summary or explanation of some of the features of

a French pension plan offered by UMR.

     Petitioner contends that these documents show that the

French pension plan generally corresponds to a trust under

section 501(c)(18).   We disagree.   First, there is no evidence

(1) that petitioner paid the $1,916 to a trust or anything
                                - 9 -

similar to a trust or (2) that the entity to which petitioner

made the payment was formed before June 25, 1959.    Petitioner

wrote on Exhibit 12-P: “UMR was created on February 25, 2002”.

Petitioner contends that the French pension plan was formed

before June 25, 1959, because the corpus of that plan has existed

since 1949.    Petitioner relies on Rapport de Gestion, UMR, which

she states is available on a Web site.    We have not considered

that document because it was not offered or admitted into

evidence.

     Petitioner contends that we should take judicial notice that

the corpus of petitioner’s French retirement plan has existed

since 1949.    A judicially noticed fact may not be subject to

reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.    Fed. R. Evid.

201(b).   The UMR Web site does not meet either requirement, and

we do not take judicial notice of items appearing in it.    See id.

     To qualify under section 501(c)(18)(B), petitioner’s French

retirement plan must provide benefits that are payable to

employees under a classification which is set forth in the plan

and which does not discriminate in favor of highly compensated

employees.    See sec. 501(c)(18)(B).   Petitioner contends that her

testimony that this requirement is met is corroborated at page 4
                               - 10 -

of Exhibits 12-P and 16-P.    We disagree.   Page 4 of those

Exhibits does not so state.

      To qualify under section 501(c)(18), the plan must have

been funded solely by employee contributions.     There is no

evidence of the source of funding of the French pension plan

other than petitioner’s $1,916 payment in 2001.

     To qualify under section 501(c)(18), the benefits paid under

the plan may not discriminate in favor of highly compensated

employees.   Sec. 501(c)(18)(B) and (C).     Petitioner contends that

Exhibits 12-P and 16-P and the UMR Web site show that the pension

plan meets this requirement.    We disagree.   Exhibits 12-P and 16-

P do not describe the coverage of the French pension plan, and

the UMR Web site is not in evidence.

     According to petitioner, a publication prepared by the

French Foreign Ministry states that her $1,916 payment to the

French pension plan in 2001 is deductible.     The publication to

which petitioner refers describes a tax convention signed by

France and the United States on July 28, 1967.     We disagree that

the publication authorizes petitioner to deduct the $1,916.     The

publication refers to a tax convention that was superseded by the

1994 U.S./French Tax Convention.    See 1994 U.S./French Tax

Convention art. 23(4), 2 Tax Treaties (CCH) par. 2001.24.

Article 18 of the 1994 U.S./French Tax Convention, rather than

Article 19 in the now-superseded convention signed in 1967,
                              - 11 -

governs deductions for pension payments made in 2001.   The French

Foreign Ministry publication does not apply to petitioner’s

payments to the French pension plan in 2001.

     We conclude on this record that the French pension plan to

which petitioner paid $1,916 in 2001 does not generally

correspond to a trust as defined by section 501(c)(18).   Thus,

petitioner may not deduct $1,916 that she paid to her French

retirement plan in 2001.5

B.   Whether Petitioner May Deduct Real Estate Tax in 2001

     Petitioner asserts that she is entitled to deduct real

estate taxes she paid when she bought property in France in

2001.6   At trial, petitioner offered to give respondent an

English translation of a settlement statement that she received

when she bought the property in question.   The settlement

statement shows that certain taxes were calculated in connection

with petitioner’s purchase of the property.    However, the record

does not show whether the taxes are foreign real estate taxes



     5
        In light of this conclusion, we need not decide
respondent’s contention regarding the fact that petitioner did
not receive a determination from the United States competent
authority as to whether the French retirement plan generally
corresponds to a United States retirement plan or that certain
documents, including Exhibits 9-P and 12-P, and the English
translation of them, Exhibits 14-P and 16-P, should not have been
admitted in evidence.
     6
        The Court granted petitioner’s motion for leave to file
the amended petition raising this issue when this case was called
for trial.
                              - 12 -

that are deductible under section 164(a)(1);7 i.e., that were

imposed on her interest in real property and that such taxes were

levied for the general public welfare, sec. 1.164-3(b), Income

Tax Regs.   Absent that evidence, we hold that petitioner is not

entitled to the deduction that she claims.

     To reflect the foregoing,


                                         Decision will be

                                    entered for respondent.




     7
        See sec. 1.164-3(b), Income Tax Regs., which defines real
property taxes as “taxes imposed on interests in real property
and levied for the general public welfare, but does not include
taxes assessed against local benefits. See §1.164-4.” Sec.
1.164-4(a), Income Tax Regs., states that taxes for local
benefits that are not deductible include taxes for benefits “such
as streets, sidewalks, and other like improvements, imposed
because of and measured by some benefit inuring directly to the
property against which the assessment is levied”. See sec.
164(c)(1).
