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GRAY v. BAIER

August 30, 1989

CHAPPELLE GRAY, Plaintiff,
v.
RICHARD BAIER, et al., Defendants


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on defendants' motion to dismiss Counts I, II, III, IV, and VI of the complaint and for summary judgment as to Count V. For the reasons set forth below, defendants' motion is granted.

 Plaintiff was employed by Tele-Data, Inc. from July 1, 1974 to September 30, 1985. In November 1972, Tele-Data established the Employees Profit-Sharing Plan and Profit-Sharing Trust for the benefit of its employees. Defendant Baier is the Trustee of the Plan and is also named as Plan Administrator.

 In September 1986, plaintiff requested payment of her accrued vested benefits (in essence a lump-sum payment). Plaintiff alleges that defendants discriminated against her by not paying her a share of Plan benefits for the Plan year ending October 31, 1986. In Count I, she seeks a declaratory judgment that the Plan is "non-qualified." She also alleges breach of fiduciary duty under Counts II and IV for which she seeks compensatory damages. *fn1" Under Count III, plaintiff alleges discrimination for exercise of rights under the Employee Retirement Income Security Act (ERISA). Plaintiff raises a claim for withholding of Plan information under Count V and alleges civil conspiracy under Count VI.

 DISCUSSION

 Count I

 Plaintiff contends that "the Plan has been operated in a discriminatory, illegal, fraudulent and improper manner. These instances of misconduct are sufficient to cause the disqualification of the Plan." Complaint at 8. Accordingly, she seeks declaratory relief under 26 U.S.C. § 7476. That section, which is part of the Internal Revenue code, provides that "upon the filing of an appropriate pleading, the Tax Court may make a declaration with respect to such initial qualification or continuing qualification." Plaintiff's attempt to use this code section suffers from several flaws. First, the section vests jurisdiction in the Tax Court, not in the district courts. Second, the section imposes various limitations on its invocation. From the record before the Court, it appears that plaintiff has not fulfilled certain prerequisites, including but not limited to exhaustion of administrative remedies within the Internal Revenue Service. See id. at 7476(b)(3). Defendants' motion to dismiss must be granted on this count of the complaint.

 Counts II and IV

 Plaintiff alleges that defendant Baier breached his fiduciary duty by deliberately:

 
misleading plaintiff with regard to the amount of Plan benefits to which she was entitled, discriminating against plaintiff in failing to allocate to plaintiff her allocable share of Plan gains, income and earnings for the Plan Year ending October 31, 1986, and in the retaliatory actions made against plaintiff for her assertion of her legitimate ERISA rights . . . .

 Complaint at 10. Plaintiff seeks damages under § 409 of ERISA, which provides that:

 
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries . . . shall be personally liable to make ...

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