Bloomberg Bloomberg
Comprehensive Tax Research. Practitioner to Practitioner. ®

Internal Revenue Code, § 7428. Declaratory Judgments Relating To Status And Classification Of Organizations Under Section 501(c)(3), Etc.

I.R.C. § 7428(a) Creation Of Remedy
In a case of actual controversy involving—
I.R.C. § 7428(a)(1)
a determination by the Secretary—
I.R.C. § 7428(a)(1)(A)
with respect to the initial qualification or continuing qualification of an organization as an organization described in section 501(c)(3) which is exempt from tax under section 501(a) or as an organization described in section 170(c)(2),
I.R.C. § 7428(a)(1)(B)
with respect to the initial classification or continuing classification of an organization as a private foundation (as defined in section 509(a)),
I.R.C. § 7428(a)(1)(C)
with respect to the initial classification or continuing classification of an organization as a private operating foundation (as defined in section 4942(j)(3)),
I.R.C. § 7428(a)(1)(D)
with respect to the initial classification or continuing classification of a cooperative as an organization described in section 521(b) which is exempt from tax under section 521(a), or
I.R.C. § 7428(a)(1)(E)
with respect to the initial qualification or continuing qualification of an organization as an organization described in section 501(c) (other than paragraph (3)) or 501(d) and exempt from tax under section 501(a), or
I.R.C. § 7428(a)(2)
a failure by the Secretary to make a determination with respect to an issue referred to in paragraph (1),
upon the filing of an appropriate pleading, the United States Tax Court, the United States Court of Federal Claims, or the district court of the United States for the District of Columbia may make a declaration with respect to such initial qualification or continuing qualification or with respect to such initial classification or continuing classification. Any such declaration shall have the force and effect of a decision of the Tax Court or a final judgment or decree of the district court or the Court of Federal Claims, as the case may be, and shall be reviewable as such. For purposes of this section, a determination with respect to a continuing qualification or continuing classification includes any revocation of or other change in a qualification or classification.
I.R.C. § 7428(b) Limitations
I.R.C. § 7428(b)(1) Petitioner
A pleading may be filed under this section only by the organization the qualification or classification of which is at issue.
I.R.C. § 7428(b)(2) Exhaustion Of Administrative Remedies
A declaratory judgment or decree under this section shall not be issued in any proceeding unless the Tax Court, the Court of Federal Claims, or the district court of the United States for the District of Columbia determines that the organization involved has exhausted administrative remedies available to it within the Internal Revenue Service. An organization requesting the determination of an issue referred to in subsection (a)(1) shall be deemed to have exhausted its administrative remedies with respect to a failure by the Secretary to make a determination with respect to such issue at the expiration of 270 days after the date on which the request for such determination was made if the organization has taken, in a timely manner, all reasonable steps to secure such determination.
I.R.C. § 7428(b)(3) Time For Bringing Action
If the Secretary sends by certified or registered mail notice of his determination with respect to an issue referred to in subsection (a)(1) to the organization referred to in paragraph (1), no proceeding may be initiated under this section by such organization unless the pleading is filed before the 91st day after the date of such mailing.
I.R.C. § 7428(b)(4) Nonapplication For Certain Revocations
No action may be brought under this section with respect to any revocation of status described in section 6033(j)(1).
I.R.C. § 7428(c) Validation Of Certain Contributions Made During Pendency Of Proceedings
I.R.C. § 7428(c)(1) In General
If—
I.R.C. § 7428(c)(1)(A)
the issue referred to in subsection (a)(1) involves the revocation of a determination that the organization is described in section 170(c)(2),
I.R.C. § 7428(c)(1)(B)
a proceeding under this section is initiated within the time provided by subsection (b)(3), and
I.R.C. § 7428(c)(1)(C)
either—
I.R.C. § 7428(c)(1)(C)(i)
a decision of the Tax Court has become final (within the meaning of section 7481), or
I.R.C. § 7428(c)(1)(C)(ii)
a judgment of the district court of the United States for the District of Columbia has been entered, or
I.R.C. § 7428(c)(1)(C)(iii)
a judgment of the Court of Federal Claims has been entered,
and such decision or judgment, as the case may be, determines that the organization was not described in section 170(c)(2),
then, notwithstanding such decision or judgment, such organization shall be treated as having been described in section 170(c)(2) for purposes of section 170 for the period beginning on the date on which the notice of the revocation was published and ending on the date on which the court first determined in such proceeding that the organization was not described in section 170(c)(2).
I.R.C. § 7428(c)(2) Limitation
Paragraph (1) shall apply only
I.R.C. § 7428(c)(2)(A)
with respect to individuals, and only to the extent that the aggregate of the contributions made by any individual to or for the use of the organization during the period specified in paragraph (1) does not exceed $1,000 (for this purpose treating a husband and wife as one contributor), and
I.R.C. § 7428(c)(2)(B)
with respect to organizations described in section 170(c)(2) which are exempt from tax under section 501(a) (for this purpose excluding any such organization with respect to which there is pending a proceeding to revoke the determination under section 170(c)(2)).
I.R.C. § 7428(c)(3) Exception
This subsection shall not apply to any individual who was responsible, in whole or in part, for the activities (or failures to act) on the part of the organization which were the basis for the revocation.
I.R.C. § 7428(d) Subpoena Power For District Court For District Of Columbia
In any action brought under this section in the district court of the United States for the District of Columbia, a subpoena requiring the attendance of a witness at a trial or hearing may be served at any place in the United States.
(Added by Pub. L. 94-455, title XIII, 1306(a), Oct. 4, 1976, 90 Stat. 1717, and amended by Pub. L. 95-600, title VII, 701(dd)(2), Nov. 6, 1978, 92 Stat. 2924; Pub. L. 97-164, title I, 152, Apr. 2, 1982, 96 Stat. 46; Pub. L. 98-369, div. A, title X, 1033(b), July 18, 1984, 98 Stat. 1039 ;Pub. L. 105-34, title XII, Sec. 1239(d)(2), Aug. 5, 1997, 111 Stat 788; Pub. L. 108-357, title III, Sec. 317(a), Oct. 22, 2004; Pub. L. 109-280, title XII, Sec. 1223(c), Aug. 17, 2006, 120 Stat. 780; Pub. L. 114-113, Div. Q, title IV, Sec. 406(a), Dec. 18, 2015; Pub. L. 115-141, Div. U, title IV, Sec. 401(a)(325)(A), (B), Mar. 23, 2018, 132 Stat. 348.)
BACKGROUND NOTES
Prior Provisions
A prior section 7428 was renumbered 7434.
AMENDMENTS
2018 — Subsec. (a). Pub. L. 115-141, Div. U, Sec. 401(a)(325)(A), amended subsec. (a) by substituting “ United States Court of Federal Claims” for “United States Claims Court”.
Subsec. (a), (b), (c)(1)(C)(iii). Pub. L. 115-141, Div. U, Sec. 401(a)(325)(B), amended subsec. (a), (b), and clause (c)(1)(C)(iii) by substituting “ Court of Federal Claims” for “Claims Court”.
2015 — Subsec. (a)(1)(C), (E). Pub. L. 114-113, Div. Q, Sec. 406(a), amended par. (1) by striking “or” at the end of subpar. (C) and by adding subpar. (E).
2006 — Subsec. (b)(4). Pub. L. 109-280, Sec. 1223(c), added par. (4).
2004 --Subsec.(a)(1)(B). Pub. L. 108-357, Sec. 317(a), amended par. (1) by striking “or” at the end of subpar. (B).
2004 --Subsec. (a)(1)(D). Pub. L. 108-357, Sec. 317(a), amended par. (1) by adding subpar. (D).
1984--Subsec. (d). Pub. L. 98-369 added subsec. (d).
1982--Subsecs. (a), (b)(2), (c)(1)(C)(iii). Pub. L. 97-164 substituted “Claims Court” for “Court of Claims”.
1978--Subsec. (a). Pub. L. 95-600 inserted provision relating to change in qualification or classification.
EFFECTIVE DATE OF 2018 AMENDMENTS
Amendments by Pub. L. 115-141, Div. U, Sec. 401(a)(325)(A), (B), effective March 23, 2018.
EFFECTIVE DATE OF 2015 AMENDMENTS
Amendments by Pub. L. 114-113, Div. Q, Sec. 406(a), effective for pleadings filed after the date of the enactment of this Act [Enacted: Dec. 18, 2015].
EFFECTIVE DATE OF 2006 AMENDMENT
Amendment by Pub. L. 109-280, Sec. 1223(c), applicable to notices and returns with respect to annual periods beginning after 2006.
EFFECTIVE DATE OF 2004 AMENDMENTS
Amendments by Pub. L. 108-357, Sec. 317(a), applicable to pleadings filed after the date of the enactment of this Act [Enacted: Oct. 22, 2004].
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-369 applicable with respect to inquiries and examinations beginning after Dec. 31, 1984, see section 1033(d) of Pub. L. 98-369, set out as an Effective Date note under section 7611 of this title.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-600 effective as if included in this section at the time section was added to this title, see section 701(dd)(3) of Pub. L. 95-600, set out as a note under section 7476 of this title.
EFFECTIVE DATE
Section 1306(c) of Pub. L. 94-455 provided that: “The amendments made by this section [enacting this section and amending sections 7451, 7459, 7470, and 7482 of this title, enacting section 1507 of Title 28, Judiciary and Judicial Procedure, and amending sections 1346 and 2201 of Title 28] shall apply with respect to pleadings filed with the United States Tax Court, the district court of the United States for the District of Columbia, or the United States Court of Claims more than 6 months after the date of the enactment of this Act [Oct. 4, 1976] but only with respect to determinations (or requests for determinations) made after January 1, 1976.”