Jolles Foundation v. Moysey, 23
| Decision Date | 06 December 1957 |
| Docket Number | Docket 24467.,No. 23,23 |
| Citation | 250 F.2d 166 |
| Parties | The JOLLES FOUNDATION, Inc., Plaintiff-Appellant, v. Donald R. MOYSEY, Individually and as District Director, Internal Revenue Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
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Alexander C. Dick, New York City, (James G. Mitchell, Clarence C. Meleney and Meleney, Mitchell & Dick, New York City, on the brief), for plaintiff-appellant, The Jolles Foundation, Inc.
John S. Clark, Asst. U. S. Atty., S. D. New York, New York City (Paul W. Williams, U. S. Atty., S. D. New York, New York City, on the brief), for defendant-appellee, Donald R. Moysey, Individually and as District Director, Internal Revenue Service.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and LEIBELL, District Judge.
Plaintiff-appellant, The Jolles Foundation, Inc. (referred to as "the Foundation") brought this action against Donald R. Moysey, individually and as District Director, Internal Revenue Service, seeking a "judgment declaratory of its rights under said Constitution the Constitution of the United States pursuant to United States Code, Title 28, Section 2201," i.e., the Federal Declaratory Judgment Act. More specifically the Foundation prays for a decree that the Director has wrongfully and unlawfully deprived the Foundation of its property "by his exclusion of plaintiff's name from the list of organizations entitled * * * to the privilege of tax exemption." The government moved to dismiss the complaint (1) for failure to state a claim and (2) for lack of jurisdiction "because the complaint seeks a declaratory judgment with respect to Federal taxes as prohibited by Title 28, United States Code, Section 2201." The district court granted the motion to dismiss. The Foundation appealed.
The Foundation was organized on December 19, 1944 under the New York Membership Corporations Law primarily to assist individuals or organizations working for the relief "of the people of Poland, China and other countries affected by War." On November 4, 1947 the Deputy Commissioner of Internal Revenue ruled that the Foundation was "exempt from Federal income tax under the provisions of section 101(6) of the Internal Revenue Code 26 U.S.C.A. § 101(6) * * * as it is shown that you are organized and operated exclusively for charitable purposes." The Deputy Commissioner also advised the Foundation that it would "not be required to file income tax returns unless you change the character of your organization, the purposes for which you were organized, or your method of operation." Any such change was to be reported so that its effect on the exempt status might be determined.
On August 6, 1952 the Foundation, through its attorneys, notified the New York Collector's office that on May 19, 1952 it had filed a "Certificate of Change of Purposes" adding a purpose, in substance, to distribute to individuals, schools and libraries, books, pamphlets and other literature relating to historical matters, current events, civics, foreign policies and similar subjects and asked for confirmation that this additional purpose did not affect its tax-exempt status.
On November 10, 1952 the Assistant Commissioner advised the Foundation that its exempt status was terminated because "there has been a material change in your form of organization" but offered to "give further consideration to your status for Federal income tax purposes after you have actively operated for a year under the amendment of your charter" and outlined the form of statement required for a reconsideration of the Foundation's compliance with Section 101(6).
Subsequently, application having been made by the Foundation, the Acting Assistant Commissioner ruled that an analysis of the information submitted disclosed that the activities of the Foundation since May 19, 1952 "are not exclusively charitable or educational within the intendment of section 501(c) (3) of the Code of 1954" and that "you are not exempt from Federal income tax under that section of law."
After some further correspondence in which counsel for the Foundation indicated that no judicial review of the Commissioner's rulings was permissible and that "the statutory remedy consists in the long and dilatory processes of assessment, conferences, appeals to the Tax Court, the Circuit Court of Appeals, and eventually through writ of certiorari to the Supreme Court of the United States," this action was commenced.
The Foundation is asking this Court to declare that it should have a tax-exempt...
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Hartman v. Switzer, Civ. A. No. 73-788.
...2201, the plaintiff's action for a declaratory judgment as to a federal tax matter is specifically prohibited. See Jolles Foundation v. Moysey, 250 F.2d 166 (2 Cir. 1957); United States v. Teitelbaum, 342 F.2d 672 (7 Cir. 1965) cert. den. 382 U. S. 831, 86 S.Ct. 71, 15 L.Ed.2d 75 (1965); Mi......
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...on the question. 14 McGlotten, supra. 15 McGlotten, supra, at 452-453. 16 McGlotten, supra, at 453-454. 17 Jolles Foundation v. Moysey, 250 F.2d 166 (2nd Cir. 1957); Singleton v. Mathis, 284 F.2d 616 (8th Cir. 1960); Mitchell v. Riddell, 402 F.2d 842 (9th Cir. 1968); Kyron Foundation v. Dun......
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