OPINION
Dawson, Judge:This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent’s motion to dismiss for lack of jurisdiction. After a review of the record, we agree with and adopt his opinion which is set forth below.1
OPINION OF THE SPECIAL TRIAL JUDGE
Cantrel, Special Trial Judge:Petitioner brought an action for declaratory judgment pursuant to section 7428 and Rule 211, Tax Court Rules of Practice and Procedure,2 on the ground that respondent failed to make a determination with respect to petitioner’s continuing classification as a nonprivate foundation as described in section 509(a)(1).
Petitioner is a testamentary trust established under the Will of J. David Gladstone, who died on June 14, 1971. As directed by Mr. Gladstone’s will, petitioner was created as a medical research organization for the conduct of research in blood and vascular diseases.
On March 22, 1973, the trustees for petitioner submitted an Application for Recognition of Exemption, Form 1023, to the District Director, Internal Revenue Service, Los Angeles, Calif. The District Director, by letter dated June 7,1973, as modified by letter dated June 15, 1973, determined that petitioner was an exempt organization under section 501(c)(3) and that petitioner was not a private foundation as described in section 509(a) because it was a medical research organization described in section 170(b)(l)(A)(iii).
On August 4, 1977, upon examination of petitioner’s information returns submitted for the taxable years 1974 and 1975, the District Director, by letter to petitioner, proposed to revoke its status under section 509(a)(1) and determine that petitioner was a private foundation as described in section 509(a) and was not an operating foundation described in section 4942(j)(3) for the taxable years 1974 and 1975. Petitioner on September 2, 1977, filed a written protest with the District Director in Los Angeles, appealing and disagreeing with the proposed revocation of exempt status and requesting a conference with respondent’s Regional Office. On November 18,1977, a conference with the Regional Office was held. The Regional Office decided adversely to petitioner by letter dated March 14,1978. On April 11, 1978, petitioner requested respondent’s National Office to review the Regional Office’s determination and hold a conference. The National Office accepted petitioner’s appeal on July 14, 1978. A conference with the National Office was held on November 20, 1978. Petitioner was notified on January 23, 1980, by the National Office that it had decided the appeal adversely to petitioner and that the case had been remanded to the District Director, Los Angeles, for issuance of a final adverse determination letter. Petitioner has fully cooperated with the respondent throughout the appeal process in timely and expeditiously submitting all required documents in furtherance of its request for determination and in supplying all additional information requested by respondent.
On March 3, 1980, petitioner filed a petition in this Court seeking a declaratory judgment pursuant to section 7428. Therein, petitioner requests the Court to find that petitioner is not a private foundation described in section 509(a) but is an exempt organization described in section 509(a)(1) and section 170(b)(l)(A)(iii). On April 15,1980, respondent filed a motion to dismiss for lack of jurisdiction, and it is that motion which is presently before the Court for decision.
Subsequent to the filing of the petition in this Court, additional administrative action took place. On March 4,1980, petitioner sent a letter and additional materials to the District Director in Los Angeles seeking reconsideration of his proposed adverse determination. That request was denied on May 28, 1980, on which date respondent issued a final adverse determination letter which determined that petitioner’s private foundation status would be deemed to commence on January 1, 1976. Thereafter, petitioner filed a petition with this Court on August 25, 1980, based upon the final adverse determination letter, which was assigned docket No. 16256-SOX.
At the outset, we think it necessary to discuss the effect of the issuance of the final adverse determination letter after the petition for declaratory judgment was filed with this Court. By his argument that an actual controversy did not exist at the time the petition in this case was filed but did mature into an actual controversy upon the issuance of the May 28, 1980, letter, respondent would have us hold that the petition filed in this case is premature. We do not agree with respondent that this case is mooted by the issuance of that final adverse determination letter.
This Court has jurisdiction over declaratory judgment actions concerning exempt organizations as provided in sections 7442 and 7428. We will discuss hereinafter the jurisdictional requirements of section 7428, which we have found that petitioner has met. We have held in some circumstances that once this Court obtains jurisdiction, events subsequent to the filing of the petition do not divest us of jurisdiction. See, e.g., McGowan v. Commissioner, 67 T.C. 599 (1976) (jurisdiction is not removed through an attempted concession by one party); Fotochrome, Inc. v. Commissioner, 57 T.C. 842 (1972) (under the Bankruptcy Act, the Tax Court was not deprived of jurisdiction because of a bankruptcy filing subsequent to the petition in the Tax Court being filed); Main-Hammond Land Trust v. Commissioner, 17 T.C. 942 (1951), affd. 200 F.2d 308 (6th Cir. 1952) (jurisdiction remains unimpaired despite the fact that the trust was terminated after the filing of the petition); Bowman v. Commissioner, 17 T.C. 681 (1951) (jurisdiction is not removed through waiver or disclaimer by respondent); Richter v. Commissioner, 16 B.T.A. 936 (1929) (subsequent payment of additional tax did not deprive the Board of jurisdiction).
This rule is consistent with the general procedure in the Federal court system. "In general, federal jurisdiction depends on the facts as they exist at the time suit is commenced, and is not conferred or divested by later changes.” Lanigan v. Boston Terminal Corp., 112 F. Supp. 957, 958 (D. Mass. 1953); Fairview Park Excavating Co. v. Al Monzo Construction Co., 560 F.2d 1122 (3d Cir. 1977). The same rule is applicable to the case presently under review. Thus, the issuance of'a final adverse determination letter after the filing of a valid petition does not moot the original petition. See B.H.W. Anesthesia Foundation, Inc. v. Commissioner, 72 T.C. 681 (1979). In that case, as in the one presently before us, the petition was filed on the basis of a failure to make a determination, and immediately after a petition was filed with this Court, respondent issued an unfavorable ruling. The subsequent issuance of the unfavorable ruling did not divest the Court of jurisdiction in B.H. W. Anesthesia Foundation, nor does it so divest the Court in this case.
Section 7428(a)3 requires (1) an actual controversy (2) involving a determination or a failure to make a determination by the Secretary (3) with respect to an organization’s initial or continuing qualification or classification as an exempt organization, a qualified charitable contribution do-nee, a private foundation, or a private operating foundation.
Respondent insists that no actual controversy exists. Sec. 7428(a). "Actual controversy” is not defined by the Code nor by the legislative history of section 7428. However, guidance can be found in section 7476 to which the legislative history of the declaratory judgment provisions now under consideration made frequent reference.4
Section1 7476 created a declaratory judgment remedy for organizations and individuals seeking qualification of certain retirement plans. When Congress was considering creating a declaratory judgment remedy with respect to the retirement plans, the House report defined what constituted an "actual controversy” within the meaning of section 7476. That section requires that the plan be put into effect, that notice be given to all interested parties, and that administrative remedies be exhausted. H. Rept. 93-807 (1974), 1974-3 C.B. (Supp.) 236, 342-344.
Similarly, section 7428 requires a request be made by the organization to the Secretary of the Treasury for a determination and the exhaustion of administrative remedies. Sec. 7428(b)(2).
However, respondent contends that an actual controversy requires a final adverse determination by him, implying that a proposed revocation is not sufficient. Respondent argues that, since petitioner’s status at the time of filing its petition in this Court was that of a nonprivate foundation, petitioner seeks to obtain by declaratory judgment a status it already has, and he cites two cases in support for his position: Ohio County & Independent Agriculture Societies v. Commissioner, 610 F.2d 448 (6th Cir. 1979), affg. an order of this Court, cert. denied 446 U.S. 965 (1980); CREATE (Christian, Research, Education, Action, Technical Enterprise), Inc. v. Commissioner, 634 F.2d 803 (5th Cir. 1981), affg. an order of this Court.
In Ohio County, petitioner, which had an existing classification as a section 501(c)(3) organization, sought reclassification as a section 170(b)(l)(A)(v) organization as an instrumentality of the State of Ohio. The Court of Appeals for the Sixth Circuit agreed with our Court, concluding that we did not have jurisdiction under section 7428 because there was no actual controversy under section 501(c)(3). The Court’s decision in Ohio County went to whether the controversy fit within the specific classifications Congress enumerated in section 7428(a)(1)(A) through (C).5
In CREATE, petitioner’s status was not in issue, but the question was whether a certain contributor was subject to a 2-percent limitation on a charitable contribution. The case did not involve petitioner’s initial or continuing classification.
Although petitioner retained its nonprivate foundation status throughout the administrative process, its continuing classification is unquestionably in issue. If petitioner does not succeed in its timely and expeditious administrative efforts, its nonprivate foundation status will be revoked. Indeed, its classification was revoked more than 32 months after it began its administrative efforts as is manifest by the issuance of the final adverse determination letter sent petitioner on May 28, 1980.6 An actual controversy existed on the date petitioner filed its petition herein.
Our interpretation of the meaning of "actual controversy” also comports with the general rule followed by the Federal courts. This Court has looked to the standards imposed by article III courts on previous occasions before allowing standing. See, e.g., Thompson v. Commissioner, 71 T.C. 32, 38-39 (1978). In Maryland Casualty Co. v. Pacific Coal & Oil Co., the Supreme Court defined actual controversy within the meaning of the Declaratory Judgment Act, 28 U.S.C. sec. 400 (now sec. 2201): "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” 312 U.S. 270, 273 (1941).
Having found that an actual controversy exists, the question of whether the petition herein was validly filed depends on whether petitioner has made a request for a determination and has exhausted its administrative remedies.
Respondent makes an argument that a final determination with respect to petitioner’s continuing classification has not been made as required by section 7428(a). He maintains that section 7428(a)(1) is satisfied only by the issuance of a final adverse determination letter. Therefore, he asserts that, because no final adverse determination letter was issued before the filing of the petition in this Court, petitioner’s nonprivate foundation status has not been revoked. Respondent relies on New Community Senior Citizen Housing Corp. v. Commissioner, 72 T.C. 372 (1979). In New Community, the petitioner-organization, which was qualified under section 501(c)(3), had requested a ruling as to whether certain proposed transactions would jeopardize petitioner’s exempt status. Within 90 days from the date the ruling was issued, petitioner-organization filed a petition with this Court under section 7428(a)(1)(A). In that case we said that "section 7428 is designed to provide a review only of respondent’s final determinations affecting the tax qualification of a section 501(c)(3) organization.” 72 T.C. at 375.
It is true that in both New Community and in the case presently under review, the petitioner’s continuing qualification as a section 501(c)(3) organization and as a nonprivate foundation, respectively, had not been revoked at the time the petitions for declaratory judgment were filed. However, two critical points distinguish New Community from the present case. At the time petitioner in this case filed its petition, respondent had proposed to revoke petitioner’s nonprivate foundation status, while in New Community, respondent had made no step toward revoking the status of petitioner. The ruling involved was just advisory. Equally as important, petitioner does not base its claim on section 7428(a)(1) as the petitioner in New Community did, but, rather petitioner makes its claim under section 7428(a)(2) for failure to make a determination.
Respondent counters that he has not failed to make a determination under section 7428(a)(2). Rather, he takes the position that petitioner retained its nonprivate foundation status when it filed its petition in this Court. Petitioner vigorously maintains that respondent has failed to make a final determination with respect to its written protest to respondent’s proposed revocation letter.
The legislative history of both section 7428 and section 7476 defines a failure to make a determination as a "failure to act” by the Internal Revenue Service with respect to a request for a determination.7
Respondent argues that section 7428 was not intended to provide for declaratory relief from proposed revocations or reclassifications of foundation status because the purpose of the Tax Reform Act of 1976 was to protect potential contributions. Contributions to an organization are protected until a final adverse determination letter is issued, and even then, the organization can seek declaratory relief and obtain continued protection for contributions under section 7428(c). Therefore, in respondent’s opinion, section 7428(a)(2) applies only to initial qualification cases where continued contributions would not be protected. Respondent cites New Community Senior Citizen Housing Corp. v. Commissioner, supra, to support his theory. Respondent’s reliance on New Community is misplaced because that case only dealt with section 7428(a)(1). If Congress intended to so limit the reach of section 7428(a)(2), it would have explicitly so provided. Instead, Congress clearly intended that declaratory judgment actions as to tax-exempt status as charitable, etc., organizations be available remedies for revocation cases where final determinations were made and where there has been a failure to make a determination. Sec. 7428(a)(2); see Joint Comm, on Taxation, 94th Cong., 2d Sess., General Explanation of the Tax Reform Act of 1976, 1976-3 C.B. (Vol. 2) 1, 415. Additionally, Rules 210-217 and the Notes appertaining thereto specifically provide for cases where there has been a revocation. 68 T.C. 1025, 1031-1051.
In fact, the two cases that prompted Congress to enact the declaratory judgment provision for exempt organizations were revocation cases. See Bob Jones University v. Simon, 416 U.S. 725 (1974); Alexander v. "Americans United” Inc., 416 U.S. 752 (1974); Joint Comm, on Taxation, 94th Cong., 2d Sess., General Explanation of the Tax Reform Act of 1976, supra, 1976-3 C.B. (Vol. 2) at 413. In our view, section 7428(a)(2) applies to both initial and continuing classification situations, and we so hold.
Finally, respondent argues that, even if it is determined that respondent has failed to make a determination with respect to petitioner’s continuing classification as a nonprivate foundation, petitioner has failed to exhaust its administrative remedies. Sec. 7428(b)(2). Although petitioner has completed the protest and appeal procedures through the National Office, respondent contends that it must file an application requesting a new determination of its foundation status.
Petitioner argues that it has exhausted its administrative remedies since it submitted a written protest to respondent’s proposed revocation and has completed the appeal process through the National Office as required by Rev. Proc. 76-34, 1976-2 C.B. 657. Respondent contends that the protest and appeal procedure is separate and distinct from the procedure of making a request for a new determination of foundation status. In support of that contention, respondent cites sections 601.201(n)(2)(iii) and 601.201(n)(6), Statement of Procedural Rules; Rev. Proc. 76-34, 1976-2 C.B. 657, secs. 3 and 4, and secs. 5, 6, and 7; Rev. Proc. 77-21, 1977-1 C.B. 586, sec. 6.02;8 New York County Health Services Review Organization, Inc. v. Commissioner, an unreported case (D. D.C. 1980, 45 AFTR 2d 80-1552, 80-1 USTC par. 9398).
Section 7428(b)(2) requires that an organization exhaust administrative remedies available to it within the Internal Revenue Service before a declaratory judgment can be issued. The organization will have exhausted its administrative remedies if 270 days have expired after a request for a determination has been made and the organization has taken, in a timely manner, all reasonable steps to secure a determination.9
Under the procedure for declaratory judgments set forth in the rules, there is no distinction made between requests for initial qualification cases and proposed revocation cases. To exhaust its administrative remedies, an organization must first file an application for exemption or a request for a determination of foundation status, comply with all requests for additional information, and complete the protest and appeal procedure.10
The rules also provide procedures for requests for a new determination, sec. 601.201(n)(2)(iii), Statement of Procedural Rules, and proposed revocation of exempt status, sec. 601.201(n)(6), Statement of Procedural Rules.
In this case, the Internal Revenue Service proposed to revoke petitioner’s nonprivate foundation status. The respondent is contending that a declaratory judgment action cannot be initiated after the procedure for a proposed revocation is followed. Instead, respondent argues that the procedure for a request for a new determination must also be completed.
We see no reason why either procedure when completed should not allow availability of the declaratory judgment remedy. The legislative history makes it crystal clear that section 7428 was intended to provide some relief to organizations that are initially denied exemption and to organizations whose status is revoked or modified. Joint Comm, on Taxation, 94th Cong., 2d Sess., General Explanation of the Tax Reform Act of 1976, supra, 1976-3 C.B. (Vol. 2) at 413 (citing Bob Jones University v. Simon, supra, and Alexander v. "Americans United Inc., ’’supra.)
In both Bob Jones University v. Simon, supra, and Alexander v. "Americans United Inc., ” supra, respondent revoked or attempted to revoke the organization’s status. The organization sued for injunctive relief; however, the Supreme Court found that the courts did not have jurisdiction as required by the Anti-Injunction Act, sec. 7421(a). The declaratory judgment statute for exempt organizations was explicitly enacted to provide relief to organizations in those situations. In those cases, the procedure did not initiate with a request for a new determination but rather from action taken by respondent. 416 U.S. at 727, 755.
Furthermore, although the rules do provide for different procedures, their differences are minimal. The requirements for a request for a new determination are that the request must be made in writing and made to the key District Director for the District in which the principal offices of the organization are located. Sec. 601.201(n)(2)(iii), Statement of Procedural Rules. If the District Director issues an adverse determination, the organization can pursue its protest and appeal rights by filing within 30 days a statement of facts, law, and argument.
Similarly, in the proposed revocation situation, the District Director advises the organization in writing of his proposed action and reasons for doing so. The organization has the same rights of protest and appeal. Sec. 601.201(n)(6)(ii), (iii), and (iv), Statement of Procedural Rules.
Thus, it appears that the major distinction between the two procedures is that one is initiated with an adverse determination made by respondent, while the other is initiated by the organization which is seeking reclassification or redetermination of its status. Beyond this initial step, both procedures provide for the same degree of review.11
We observe that, although respondent contends that an appeal from a proposed revocation does not meet the exhaustion of administrative remedies test, he agrees that once petitioner has received a final adverse determination letter, without the filing of a "request for a new determination,” its remedies will be exhausted.
Indeed, the purpose of the exhaustion of administrative remedies requirement was to provide the Court with a full and complete administrative record on which to base its decision. S. Rept. 94-938 (1976), 1976-3 C.B. (Vol. 3) 49, 626. Animal Protection Institute, Inc. v. U.S., Court of Claims docket No. 609-77 (Trial Div. order dated Sept. 19, 1978, 42 AFTR 2d 78-5850, 78-2 USTC par. 9709). See also the Notes to Rules 210 and 217, 64 T.C. 1177, 1178-1179. If the issuance of a final adverse determination letter as a result of a proposed revocation is sufficient to vest this Court with jurisdiction, then respondent’s argument is unfounded, for the statute clearly provides for the situation where "the Secretary fails to make a determination.” Sec. 7428(a)(2). Additionally, several cases decided by this Court have found jurisdiction in a declaratory judgment action where a final adverse determination letter was issued as the result of the issuance of a proposed revocation. See, e.g., Industrial Aid for the Blind v. Commissioner, 73 T.C. 96 (1979); Hutchinson Baseball Enterprises v.. Commissioner, 73 T.C. 144 (1979), on appeal (10th Cir., Jan. 24, 1980); Western Catholic Church v. Commissioner, 73 T.C. 196 (1979), affd. without published opinion 631 F.2d 736 (7th Cir. 1980), cert. denied 450 U.S. 981 (1981). There is no other interpretation but that the written protest from a proposed revocation was. deemed a "request for a determination” in those cases. In these circumstances we hold that petitioner’s written protest of September 2, 1977, is a request for determination within the intendment of section 7428(b)(2).12
Moreover, the District Court for the District of Columbia has also held that jurisdiction in a declaratory judgment action under section 7428 is proper, where the organization has received a final adverse determination letter as a result of a proposed revocation. Prince Edward School Foundation v. United States, 478 F. Supp. 107 (D. D.C. 1979), affd. per curiam in an unreported opinion (D.C. Cir. 1980), cert. denied 450 U.S. 944 (1981), 47 AFTR 2d 81-910, 81-1 USTC par. 9203; Consumer Credit Counseling Service of Alabama, Inc. v. United States, an unreported opinion (D. D.C. 1978, 44 AFTR 2d 79-5122, 78-2 USTC par. 9660).13
Furthermore, the Internal Revenue Service publications, which are sent to taxpayers to advise them of the procedure to be followed in an appeal of a proposed revocation, provide for a declaratory judgment remedy. Both publications 892 and 898 state:
If the organization does not exercise its appeal rights within the time provided, it will be considered by the Internal Revenue Service as a failure to exhaust available administrative remedies. A declaratory judgment under section 7428 of the Code will not be issued in a case subject to that provision unless a court with jurisdiction determines that the organization involved has exhausted its administrative remedies available within the Internal Revenue Service.
Respondent also relies on New York County Health Services Review Organization, Inc. v. Commissioner, supra. In that case, petitioner-organization already had a favorable section 501(c)(3) determination letter and the Secretary had made no final determination regarding the proposed modification of petitioner’s status at the time its petition for declaratory relief was filed. The court held that the organization’s challenge to the proposed modification was not sufficient to constitute exhaustion of its administrative remedies. The court said the taxpayer must file a substantially completed Form 1023 if it wants its tax-exempt status redetermined. We think that the filing of another Form 1023 would be wasteful and, where an original Form 1023 is on file for the organization, the organization has substantially completed the administrative process by protest and appeal. A new Form 1023 would only supply the same information. If a new Form 1023 was required to be filed and an adverse determination was attained therefrom, the organization would be required to complete another protest and appeal procedure before it would be deemed to have exhausted its administrative remedies. Of what value is this additional appeal procedure where it is simply a rehashing of the same issues and facts involved in the first appeal procedure initiated as a result of the proposed revocation? The respondent’s position would not change, but petitioner would suffer additional delays in obtaining a final ruling from a court.14
Petitioner also contends that, even if it has failed to exhaust its administrative remedies, it has taken "all reasonable steps to secure a determination” which is all that is required by section 7428(b)(2). Petitioner emphasizes the delays experienced in the appeal process (consuming over 900 days in total) and suggests that the hardships caused thereby make this case ripe for a declaratory judgment. At least two prior decisions of this Court have found jurisdiction even though no final adverse determination letter was issued on or before the date the petitions were filed where respondent has unduly delayed in making a decision. B.H.W. Anesthesia Foundation, Inc. v. Commissioner, supra; BBS Associates, Inc. v. Commissioner, 74 T.C. 1118 (1980)15
Although the statute requires that respondent be given á minimum of 270 days,16 we have held that the elapse of 270 days does not automatically grant the right to petition for declaratory relief. Prince Corp. v. Commissioner, 67 T.C. 318, 326 (1976).
As we said in Prince Corp. v. Commissioner, supra at 327:
Our task then is to determine whether, on all of the facts and circumstances presented, petitioner may be deemed to have exhausted its administrative remedies due to respondent’s purported failure to process its request expeditiously. Prior judicial determinations of this nature have refused to require exhaustion only in rare cases involving extreme delays. See, e.g., Walker v. Southern R. Co., 385 U.S. 196 (1966) (delays up to 10 years anticipated); Smith v. Ill. Bell Tel. Co., 270 U.S. 587 (1926) (2 years); Sunshine Publishing Co. v. Sunimerfield, 184 F. Supp. 767 (D. D.G 1960) (1% years). * * *
In this case, more than 29 months passed between the issuance of the proposed revocation letter and the filing of the petition in this Court, and more than 21 months elapsed while the case was in consideration at the National Office. The 900 days consumed in this case clearly exceed the 2 years which elapsed in B.H.W. Anesthesia Foundation v. Commissioner, supra, and the. 21 months in BBS Associates, Inc. v. Commissioner, supra, which were deemed inordinately long by this Court.
Finally, petitioner argues that section 7428 was intended to provide a remedy for hardships caused by undue administrative delays in securing private foundation determinations. We agree. Petitioner has been unable to obtain a ruling on a proposed transaction while the proposed revocation proceedings have been pending. This resulted in a 3-year delay in the closing of the Gladstone Estate. Of course, the uncertainties about petitioner’s tax liabilities if a private foundation are also present.
Under these circumstances, the statute, the legislative history, and the procedural rules, we conclude that this Court has jurisdiction to make a declaration with respect to petitioner’s continuing qualification as a nonprivate foundation pursuant to the petition filed in this case.
An appropriate order will be issued.
Reviewed by the Court.
Hall, J., did not participate in the consideration or disposition of this case.^ince this is a preliminary jurisdictional motion, the Court has concluded that the post-trial procedures of Rule 182, Tax Court Rules of Practice and Procedure, are not applicable in the present circumstances. This conclusion is based on the authority of the "otherwise provided” language of that Rule.
A11 section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated. All rule references herein are to the Tax Court Rules of Practice and Procedure.
SEC. 7428 DECLARATORY JUDGMENTS RELATING TO STATUS AND CLASSIFICATION OF ORGANIZATIONS UNDER SECTION 501(c)(3), ETC.
(a) Creation of Remedy. — In a case of actual controversy involving—
(1) a determination by the Secretary—
(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),
(B) with respect to the initial classification or continuing classification of an organization as a private foundation (as defined in section 509(a)), or
(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)), or
(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 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 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.
(b) Limitations.—
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(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 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.
S. Rept. 94-938 (1976), 1976-3 C.B. (Vol. 3) 49, 624-627; H. Rept. 94-658 (1975), 1976-3 C.B. (Vol. 2) 695, 975-976, 978; Joint Comm, on Taxation, 94th Cong., 2d Sess., General Explanation of the Tax Reform Act of 1976,1976-3 C.B. (Vol. 2) 1,413-416.
See note 3.
See and compare B.H.W Anesthesia Foundation, Inc. v. Commissioner, 72 T.C. 681, 682 n. 2 (1979).
Joint Comm, on Taxation, 94th Cong., supra, 2d Sess., General Explanation of the Tax Reform Act of 1976, 1976-3 C.B. (Vol. 2) at 417. H. Rept. 93-807 (1974), 1974-3 C.B. (Supp.) 236,344.
Rev. Proc. 76-34 and Rev. Proc. 77-21 were modified and superseded by Rev. Proc. 80-25, 1980-1 C.B. 671.
See note 3 supra; Prince Corp. v. Commissioner, 67 T.C. 318 (1976).
Sec. 601.201(n)(7), Statement of Procedural Rules.
(iv) Section 7428(b)(2) of the Code requires that an organization must exhaust its administrative remedies by taking timely, reasonable steps to secure a determination. Those steps and administrative remedies that must be exhausted within the Internal Revenue Service are:
(a) The filing of a substantially completed application Form 1023 pursuant to subdivision (i) of this subparagraph, or the filing of a request for a determination of foundation status pursuant to subparagraph (2) of this paragraph;
(b) The timely submission of all additional information requested to perfect an exemption application or request for determination of private foundation status; and
(c) Exhaustion of all administrative appeals available within the Service pursuant to subparagraphs (5) and (6) of this paragraph, as well as appeal of a proposed adverse ruling to the Conference and Review Staff of the Exempt Organizations Technical Branch in National Office original jurisdiction exemption application cases.
(v) An organization will in no event be deemed to have exhausted its administrative remedies prior to the completion of the steps described in subdivision (iv) of this subpara-graph and the earlier of.
(a) The sending by certified or registered mail of a notice of final determination', or
(b) The expiration of the 270-day period described in section 7428(b)(2) of the Code, in a case in which the Service has not issued a notice of final determination and the organization has taken, in a timely manner, all reasonable steps to secure a ruling or determination.
(vi) The steps described in subdivision (iv) of this subparagraph will not be considered completed until the Internal Revenue Service has had a reasonable time to act upon the appeal or request for consideration, as the case may be.
(vii) A notice of final determination to which section 7428 of the Code applies is a ruling or determination letter, sent by certified or registered mail, which holds that the organization is not described in section 501(c)(3) or section 170(c)(2), is a private foundation as defined in section 509(a), or is not a private operating foundation as defined in section 4942(j)(3).
[Emphasis added.]
Respondent also relies on two revenue procedures in support of his contention that the two procedures are distinct. Rev. Proc. 76-34,1976-2 C.B. 657; Rev. Proc. 77-21,1977-1 C.B. 586. These revenue procedures follow the rules, and the procedures need not be discussed again.
See and compare Friends of Society of Servants of God v. Commissioner, 75 T.C. 209 (1980).
See also Animal Protection Institute, Inc. v. United States, Court of Claims docket No. 609-77 (Trial Div. order dated Sept. 19,1978,42 AFTR 2d 78-5850,78-2 USTC par. 9709).
Compare American New Covenant Church v. Commissioner, 74 T.C. 293 (1980), where respondent had advised the organization to file its own application because it had no affiliation with another organization upon whose adverse ruling it sought to base a declaratory judgment action.
See and compare Prince Corp. v. Commissioner, 67 T.C. 318 (1976).
See note 3 supra.
Notwithstanding the majority’s use of the term "qualification” (majority opinion at pp. 228, 236 supra), it is evident that both parties agree that the instant case does not present a qualification issue — the sort of issue referred to in subpar. (A) of par. (1) of sec. 7428(a).