The opinion
Simpson, J., concurring: I agree with the majority that the first petition filed by the Gladstone Foundation was sufficient to invest this Court with jurisdiction to decide the issue of whether the Gladstone Foundation is a private foundation. However, prior to the hearing on the Commissioner’s motion to dismiss, the Commissioner issued his determination revoking the classification of the organization, and a second petition was filed by the Gladstone Foundation; the Commissioner concedes that under such petition, we have jurisdiction to decide the same issue. Since the Commissioner concedes that the second petition properly invokes our jurisdiction, there is a question as to why we have chosen to decide whether the first petition confers jurisdiction upon us. I wish to add a statement of my reasons for concluding that such concession did not make the first petition moot.
In explaining why we have chosen to retain jurisdiction of the first petition, the majority states that, as a rule, once the Court’s jurisdiction is properly invoked, subsequent events do not divest the Court of jurisdiction. However, we know that the Court’s jurisdiction is limited to deciding "real issues” (Roderick v. Commissioner, 57 T.C. 108, 113 (1971)); we do not have jurisdiction to answer abstract or academic questions (Cohen v. Commissioner, 20 B.T.A. 647, 648 (1930); see generally 9 J. Mertens, Law of Federal Income Taxation, par. 50.47, p. 121 (1977 rev.)), and ordinarily we do not decide moot issues (compare LTV Corp. v. Commissioner, 64 T.C. 589, 594-595 (1975), with McGowan v. Commissioner, 67 T.C. 599, 604-608 (1976)). In my opinion, the statement of the majority fails to explain why these principles are not applicable in this case when the Commissioner has conceded that we have jurisdiction under the second petition.
In my view, there are at least two compelling reasons for deciding the question of whether this Court has jurisdiction under the first petition for declaratory judgment filed by the Gladstone Foundation. First, there will probably be other situations in which the IRS indicates that it proposes to revoke or modify an organization’s tax exemption, and in which there is undue delay by the IRS in issuing a final notice of determination with respect to the matter. Therefore, we should decide at this time whether in such situations exempt organizations can bring a petition in this Court before a final notice of determination is issued. Second, Rule 217(c)(2) provides that when a petition seeking declaratory judgment is filed in this Court, "The burden of proof shall be upon the petitioner * * * as to the grounds set forth in the notice of determination,” but that "If the respondent has not issued a notice of determination, he shall bear the burden of proof as to every ground upon which he relies to sustain his position,” other than jurisdictional and similar grounds. Thus, whether this Court has jurisdiction in this case under the first petition presumably will determine the party upon which the burden of proof will lie. See Rule 217(c)(2)(h). For such reasons, the issue of whether the first petition was sufficient to invoke our jurisdiction is not academic or moot.
Tannenwald, Fay, and Goffe, JJ., agree with this concurring opinion.