concurring in part and dissenting in part.
I concur with the majority’s decision to remand the case with respect to the individual Internal Revenue Service (IRS) agents, since they do not enjoy the privilege of absolute immunity by virtue of their positions. I dissent from that portion of the majority opinion which holds that the Anti-Injunction Act and the Declaratory Judgment Act deprive the court of jurisdiction in this case. In my view the majority misconstrues the applicability of the Acts and I shall set out my differences with them.
I
I begin by discussing my understanding of the applicable standard of review. In *403considering a motion to dismiss for lack of subject matter jurisdiction, the complaint is to be liberally construed and all uncontro-verted factual allegations on the face of the complaint are to be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss ... the complaint should be construed favorably to the pleader.
416 U.S. at 236, 94 S.Ct. at 1686. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Byrd v. Wilson, 701 F.2d 592 (6th Cir.1983). Since the court is not to resolve issues of fact in the context of a motion to dismiss, the only pertinent issues presented by this appeal relate to the proper interpretation and application of the two acts in question and the doctrine of sovereign immunity.
II
(a) Anti-Injunction and Declaratory Judgment Acts.
Appellants’ complaint alleges that section 170(b)(l)(A)(i) of the Internal Revenue Code is unconstitutional because the criteria used by the IRS in determining what constitutes “a church or a convention or association of churches ...” constitutes an establishment of religion.1 In essence, § 170(b)(l)(A)(i) gives a greater tax deduction to an individual who contributes to an organization which qualifies as “a church or association of churches” than it gives for contributions to non-qualifying organizations.2
The scope of the prohibition in the Anti-Injunction Act (26 U.S.C. § 7421(a)) is clearly far reaching. See e.g., Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 2045-46, 40 L.Ed.2d 496 (1974); Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). Whenever the “necessary result of granting the relief prayed would be to prevent the assessment of any tax, § 7421 is applicable.” Bob Jones University v. Connally, 472 F.2d 903, 906 (4th Cir.1973).
This case, however, is not “for the purpose of restraining the assessment or collection of any tax.” On the contrary, appellants contend that the criteria used by the IRS to determine whether they are a “church or association of churches” within the meaning of § 170(b)(l)(A)(i) violates the Establishment Clause of the First *404Amendment.3 Accordingly, they contend that allowing increased charitable deductions to any religious organization is unconstitutional. A successful suit by the ISM of AM would have resulted in reducing all such deductions and consequently, in increasing taxable revenues, not decreasing them. Thus the express terms of the Act itself clearly indicate that the statute is inapplicable to the present ease. In addition, case law supports the same1 conclusion. See, e.g., Wright v. Regan, 656 F.2d 820 (D.C.Cir.1981), cert. granted, — U.S. —, 103 S.Ct. 3109, 77 L.Ed.2d 1365 (1983); Church of Scientology of Celebrity Centre v. Egger, 539 F.Supp. 491 (D.D.C. 1982); Abortion Rights Mobilization, Inc. v. Regan, 552 F.Supp. 364 (S.D.N.Y.1982); Lugo v. Simon, 453 F.Supp. 677 (N.D.Ohio 1978), rev’d on other grounds sub nom. Lugo v. Miller, 640 F.2d 823 (6th Cir.1981).
In Wright v. Regan, 656 F.2d at 820, plaintiffs sued to stop the IRS from granting exemptions to private schools that excluded Blacks. They claimed that the conduct of the government permitted schools that discriminated on the basis of race to acquire and retain status as charitable organizations under § 501(c)(3) and, thereby, to attract tax-deductible contributions for the schools’ maintenance. Thus they claimed that part of each such contribution constituted prohibited government support of race discrimination in educational facilities. In considering the applicability of the Anti-Injunction and Declaratory Judgment Acts, the Court noted:
A suit to restrain the allowance of tax benefits falls outside the literal reach of § 7421(a). Moreover, cases of this nature, ultimately raising nonfrivolous constitutional objections to IRS action, are “few and far between”; they do not threaten large interference by “public interest” litigants with the administrative process of collecting taxes.
656 F.2d at 836, n. 52.
A similar result was reached in a case involving a challenge to the validity of revenue ruling 69-545. Lugo v. Simon, 453 F.Supp. at 677. Revenue ruling 69-545 allowed hospitals to qualify as charitable organizations even if they refused to care for indigent patients without charge or at low rates. The government in Lugo claimed that the challenge to the ruling was barred by the Anti-Injunction and Declaratory Judgment Acts. The district court noted, however, that since the action was not one to enjoin or impede the collection of any tax, but instead was an action to force the IRS to tax contributions made to the hospitals concerned, “the action ... neither comes within the express terms of the statute, nor within its purpose as set forth by the Supreme Court in prior decisions involving] the statute.” 453 F.Supp. at 690. (Citations omitted)
In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) and Commissioner v. “Americans United’’ Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974), the cases relied upon by the majority, the taxpayers claimed that it was unconstitutional for the IRS to revoke their tax-exempt status. In other words, they were attempting to avoid paying taxes which the IRS sought to impose. The nature of this case is entirely different. Appellants here seek to limit tax deductions for contributions to religious organizations which qualify under § 170(b)(l)(A)(i). They are not attempting to reduce taxes. Like the appellants in Wright and Lugo, the ISM of AM is attempting to achieve a result which would increase rather than decrease tax revenues. Accordingly, the Anti-Injunction Act is inapplicable.
It follows that the Declaratory Judgment Act is inapplicable as well. The two Acts, though not similarly worded4 are, as the *405majority notes, to be interpreted coterminously. See, Investment Annuity, Inc. v. Blumenthal, 609 F.2d 1, 4 (D.C.Cir.1979), cert. denied sub nom., Investment Annuity Inc. v. Miller, 446 U.S. 981, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980); Lugo v. Simon, 453 F.Supp. at 690. As the Court noted in Lugo, the Legislative history of the Declaratory Judgment Act indicates that “the congressional intent was to create a prohibition as to actions concerning federal taxes coterminous with that provided in the Anti-Injunction Act so as to preclude circumvention of the provisions of the Anti-Injunction Act through the maintenance of an action seeking declaratory relief only.” 453 F.Supp. at 690. It is clear then, that the Declaratory Judgment Act is inapplicable to this case.
(b) Sovereign Immunity
Although the majority’s holding rendered it unnecessary for them to address the issue of sovereign immunity, I would hold that sovereign immunity has been waived in this case.
5 U.S.C. § 702 provides in pertinent part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground ...
The legislative history of § 702 and relevant case law clearly establish that Congress intended to waive sovereign immunity through this provision under certain circumstances. Jaffee v. United States, 592 F.2d 712 (3rd Cir.) cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978); H. R.Rep. No. 94-1656, 94th Cong., 2d Sess. I, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6121, 6125. The key question, then, is to which circumstances this waiver was intended to apply.
In Watson v. Blumenthal, 586 F.2d at 925, the Second Circuit concluded that 5 U.S.C. § 702 was meant to waive the defense of sovereign immunity in cases where jurisdiction otherwise existed. In other words, the court ruled that § 702 “did not remove the defense of sovereign immunity in actions under 28 U.S.C. § 1331.” 586 F.2d at 932. Based on Watson, the government contends that although § 702 defines when certain defenses are available, it does not create jurisdiction. The appellants point out, however, that the Second Circuit stance has been rejected by several courts. I agree with those latter courts and with appellants that the better view is that § 702 was meant to be a waiver of sovereign immunity specifically for actions brought under § 1331.
In Jaffee v. United States, 592 F.2d at 712 the government claimed sovereign immunity as a defense to the plaintiff’s action which was brought under § 1331 jurisdiction. In analyzing the applicability of the sovereign immunity defense, the court found that the plaintiff was entitled to sue the United States by virtue of the statutory waiver of immunity which exists in 5 U.S.C. § 702. The court reasoned as follows:
We are constrained to disagree with the Second Circuit and to hold that section 702, when it applies, waives sovereign immunity in “non-statutory” review of agency action under section 1331.
592 F.2d at 718. Indeed this court very recently reached the same conclusion in Warm v. Director, Department of the Treasury, 672 F.2d 590, 591 (6th Cir.1982) (“We *406align ourselves with the Circuits that have concluded that 5 U.S.C. § 702 waives the sovereign immunity defense in actions for non-monetary relief under Section 1331.”). Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), cert. denied, 454 U.S. 855, 102 S.Ct. 304, 70 L.Ed.2d 150, reh'g denied, 454 U.S. 1069, 102 S.Ct. 621, 70 L.Ed.2d 605 (1981); Collyard v. Washington Capitals, 477 F.Supp. 1247 (D.Minn.1979); Salzman v. Stetson, 472 F.Supp. 848 (W.D.Pa.1979). I believe the holdings of Jaffee and Warin reflect the correct interpretation of § 702. Consequently, in reaching this issue I would hold that the doctrine of sovereign immunity is inapplicable here.
Although I disagree with the majority’s interpretation of the Anti-Injunction and Declaratory Judgment Acts, I imply no opinion on the merits of the underlying controversy.
. In a 1978 speech given by the commissioner ' of the IRS, 14 criteria were suggested as a guide for which organizations should be given preferential treatment:
1. A distinct legal existence.
2. A recognized creed and form of worship.
3. A definite and distinct ecclesiastical government.
4. A formal code of doctrine and discipline.
5. A distinct religious history.
6. A membership not associated with any other church or denomination.
7. An organization of ordained ministers.
8. Ordained ministers selected after completing prescribed services.
9. A literature of its own.
10. Established places of worship.
11. Regular congregations.
12. Regular religious services.
13. Sunday schools for religious instruction of the young.
14. Schools for the preparation of its ministers.
. 26 U.S.C. § 170(b)(l)(A)(i) provides:
(b) Percentage limitations.—
(1) Individuals. — In the case of an individual, the deduction provided in subsection (a) shall be limited as provided in the succeeding subparagraphs.
(A) General rule. — Any charitable contribution to—
(i) a church or a convention or association of churches
shall be allowed to the extent that the aggregate of such contributions does not exceed 50 percent of the taxpayer’s contribution base for the taxable year.
. The fact that the Tax Court has held that the ISM of AM is not a church for income tax purposes, does not resolve the issue of whether the criteria used in making that determination are constitutional.
. The Declaratory Judgment Act 28 U.S.C. § 2201 provides in pertinent part:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes ... any court of the United States, upon the filing of an appropriate pleading,
*405may declare the rights and other legal relations of any interested party seeking such
declaration....