                                                                               [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 10-14630             NOVEMBER 15, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 5:09-cv-00144-WTH-GRJ



CHRISTIAN COALITION OF FLORIDA, INC.,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                                  versus

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                          lDefendant - Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 15, 2011)

Before MARCUS, WILSON and COX, Circuit Judges.

MARCUS, Circuit Judge:

         Christian Coalition of Fla. (“CC-FL”) appeals the district court’s dismissal

of its tax refund suit for mootness. Shortly after the litigation began, the Internal
Revenue Service (“IRS”) refunded the disputed taxes in full. CC-FL claims,

however, that a live controversy still exists because it is also seeking declaratory

and injunctive relief in order to obtain a favorable determination of its tax-exempt

status. CC-FL claims that the failure of the IRS to recognize CC-FL as a tax-

exempt organization has collateral consequences that prevent the tax refund from

rendering this case moot.

      After thorough review, we AFFIRM the judgment of the district court.

Filing a claim for a tax refund suit is not simply a procedural hurdle that, once

leapt over, allows a party to seek other forward-looking relief against the IRS after

the refund has been granted. Without a live refund claim, there is no way to

distinguish this case from the kind of pre-enforcement suits that Congress, through

the Anti-Injunction Act and the federal tax exemption to the Declaratory Judgment

Act, has expressly forbidden taxpayers from bringing.

                                          I.

      CC-FL is a Florida non-profit corporation, founded in 1990. According to

its complaint, CC-FL is an “advocacy organization” that “teaches concern for the

sanctity of life, traditional family values, an economic system which fosters

individual self-reliance, and faith in God.” CC-FL engages in a substantial

amount of lobbying and “regularly publishes voter guides and legislative

                                          2
scorecards.”

       Because of its lobbying activity, CC-FL could not seek tax exemption as a

public charity under 26 U.S.C. § 501(c)(3). Instead, on July 19, 1993, CC-FL

applied to the IRS for recognition of tax exempt status as a social welfare

organization under 26 U.S.C. § 501(c)(4) and 26 C.F.R. § 1.501(a)-1.1 Section

501(c)(4) (together with section 501(a)) exempts from taxation non-profit

organizations “operated exclusively for the promotion of social welfare.” Unlike

public charities, social welfare organizations may engage in lobbying and other

forms of advocacy. They are not permitted, however, to engage in “direct or

indirect participation or intervention in political campaigns on behalf of or in

opposition to any candidate for public office.” 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

       On July 25, 2000, the IRS issued a proposed determination letter denying

CC-FL’s application. On October 5, 2000, CC-FL filed a letter with the IRS

protesting and appealing the proposed determination. Although the IRS and CC-

FL held a conference on May 30, 2002 to discuss the proposed determination

letter, the matter was put on hold while the IRS and The Christian Coalition



       1
          An organization cannot obtain tax exempt status merely by conducting itself in
accordance with the relevant provisions of the Internal Revenue Code; rather, “[i]n order to
establish its exemption, it is necessary that every such organization claiming exemption file an
application” with the IRS. 26 C.F.R. § 1.501(a)-1(a)(2).

                                                3
International, an affiliated but separate legal entity, resolved a similar dispute in

litigation then pending in the United States District Court for the Eastern District

of Virginia.

      After that litigation concluded, the IRS issued, via a letter dated July 31,

2008, its final determination that CC-FL did not qualify for tax exempt status

under section 501(c)(4). The IRS stated: “We made this determination for the

following reasons: You were not primarily engaged in activities that promote

social welfare. Your activities primarily constituted direct and indirect

participation in political campaigns on behalf of, or in opposition to, candidates

for public office.” The final determination letter also incorporated in full the

earlier proposed determination letter, which discussed at greater length what the

IRS viewed as CC-FL’s political activities, including publishing voter guides,

releasing legislative scorecards right before elections, and conducting grassroots

political activism seminars. The proposed determination letter concluded: “The

emphasis throughout your materials is on electing to office ‘family friendly’

people in order to impact legislation and policy as insiders. The overwhelming

majority of the evidence in the administrative record, and thus the facts and

circumstances in this case, denotes an organization that is intent upon intervening

in political campaigns.”

                                           4
      During the lengthy pendency of its application, CC-FL had filed non-profit

information returns, not corporate tax returns, with the IRS. In light of the adverse

determination, the IRS instructed CC-FL to file corporate tax returns for all of the

tax years in question within 30 days of the final determination letter. CC-FL did

so, filing tax returns and making full payments for tax years 1991, 1994-2000, and

2005-2006 on August 27, 2008. CC-FL’s tax liability for these years was quite

small, ranging from $16 (in 1994) to $48 (in 1997).2

      On September 25, 2008, CC-FL then filed amended tax returns requesting a

full refund for these tax years on the ground that it is a tax exempt social welfare

organization under section 501(c)(4). By statute, a taxpayer must wait six months

before bringing a tax refund suit. 26 U.S.C. § 6532(a)(1). Within this statutory

window, on December 1, 2008, the IRS refunded CC-FL its tax amounts, plus

statutory interest, for tax years 2005 and 2006, totaling $68.68. The IRS did not

state its reasons for granting the refund.

      The IRS did not issue a refund or make a determination within the six

      2
          In its briefing, CC-FL explains why its tax liability was so small:

               Most of CC-FL’s operating budget is acquired in the form of non-taxable
               gifts excluded from its gross income pursuant to [I.R.C.] section 102.
               Consequently, CC-FL often has very little, if any, tax liability. For
               example, for the suit years, CC-FL reported gross receipts in excess of
               $2,009,700. Of that amount, approximately $1,700 dollars could properly
               be classified as taxable income, resulting in a tax liability of $261.

                                                 5
month statutory period as to CC-FL’s claim for the remaining tax years 1991 and

1994-2000. Accordingly, on April 3, 2009, CC-FL filed the refund suit at issue in

the United States District Court for the Middle District of Florida, seeking a full

refund of $261 for those years. CC-FL also sought a declaration that it qualifies as

a tax exempt organization under section 501(c)(4), an injunction prohibiting the

IRS from revoking CC-FL’s tax exempt status, and a declaration that 26 U.S.C. §

501(c)(4) and the accompanying regulations 26 C.F.R. §§ 1.504(c)(3)-1 and

1.504(c)(4)-1 are unconstitutional, both facially and as-applied to CC-FL, for

overbreadth and vagueness.

       Shortly after the litigation was filed, the IRS began refunding CC-FL its

claimed tax amounts.3 The IRS determined that, under 26 U.S.C. §§ 6501(a) and

6501(g)(2),4 the three year statute of limitations on assessing and collecting taxes


       3
           There is some dispute about the timing of these refunds. The IRS asserts that almost all
of the claimed taxes (with the exception of tax year 1995) were refunded or credited to CC-FL
before CC-FL filed suit on April 3, 2009. CC-FL says that it did not receive notice of any of
these refunds until after it commenced suit. Ultimately, this dispute is of little relevance here. It
is undisputed that at least some refunds had not yet been granted at the time CC-FL filed suit, and
it is similarly undisputed, therefore, that CC-FL had a live refund claim at the time the suit was
filed. And the IRS does not contend that the case was never a live one; rather, it argues only that
the case was later rendered moot by its full refund of the claimed taxes.
       4
          Section 6501(a) provides that “the amount of any tax imposed by this title shall be
assessed within 3 years after the return was filed.” Section 6501(g)(2) provides that if a taxpayer
has a good faith basis for believing it is a tax exempt organization and “files a return as such,”
then this earlier return is the applicable one for purposes of section 6501(a), notwithstanding a
later adverse IRS determination. In other words, for purposes of this case, CC-FL’s non-profit
information returns that it filed for each of the years 1991 and 1994-2000 -- not its later 2008

                                                 6
had run for all of the tax years. Accordingly, the IRS treated CC-FL’s tax

payments for those years as overpayments under 26 U.S.C. § 6401(a).5 Pursuant

to 26 U.S.C. § 6402(a),6 the IRS first credited CC-FL’s payments towards an

existing employment tax liability for 2006, and then refunded the rest, sending the

final refund check to CC-FL on August 11, 2009.

       On August 17, 2009, the IRS moved to dismiss the refund suit for lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The IRS claimed that

the refund suit was rendered moot because the refunds sought by CC-FL had been

granted in full. The district court agreed, entering an order granting the

government’s motion and dismissing the complaint with prejudice on August 3,

2010, and entering a separate judgment the following day.

                                                 II.

       “A district court’s decision to grant a motion to dismiss for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) is a question of law we review de

corporate tax return -- triggered the three year statute of limitations. The taxes were assessed and
collected in 2008, well outside the statute of limitations for all of the tax years at issue.
       5
          Section 6401(a) provides: “The term ‘overpayment’ includes that part of the amount of
the payment of any internal revenue tax which is assessed or collected after the expiration of the
period of limitation properly applicable thereto.”
       6
           Section 6402(a) provides: “In the case of any overpayment, the Secretary, within the
applicable period of limitations, may credit the amount of such overpayment, including any
interest allowed thereon, against any liability in respect of an internal revenue tax on the part of
the person who made the overpayment and shall . . . refund any balance to such person.”

                                                  7
novo.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).

Similarly, “[w]hether a case is moot is a question of law that we review de novo.”

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007).

                                          A.

      We begin with a brief discussion of the relevant jurisdictional statutes. The

United States, as a sovereign entity, is immune from suit unless it consents to be

sued. United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Testan,

424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941).

“[T]he terms of its consent to be sued in any court,” as expressed by statute,

“define that court’s jurisdiction to entertain the suit.” Sherwood, 312 U.S. at 586.

Accordingly, the terms of the statute or statutes waiving immunity are construed

strictly, and courts may only entertain suits that are in full accord with such

statutes. See Soriano v. United States, 352 U.S. 270, 276 (1957) (“[L]imitations

and conditions upon which the Government consents to be sued must be strictly

observed and exceptions thereto are not to be implied.” (citing Sherwood, 312

U.S. at 590-91)); accord McMaster v. United States, 177 F.3d 936, 939 (11th Cir.

1999).

      The primary jurisdictional statute governing judicial review of federal tax

decisions is 28 U.S.C. § 1346(a). It provides, in relevant part:

                                           8
               The district courts shall have original jurisdiction, concurrent
               with the United States Court of Federal Claims, of: (1) Any civil
               action against the United States for the recovery of any
               internal-revenue tax alleged to have been erroneously or illegally
               assessed or collected, or any penalty claimed to have been
               collected without authority or any sum alleged to have been
               excessive or in any manner wrongfully collected under the
               internal-revenue laws[.]

28 U.S.C. § 1346(a). Title 26 U.S.C. § 7422, which governs civil actions for tax

refunds, requires a taxpayer to first file a claim for a refund or credit with the IRS

before he may commence a tax refund suit. See 26 U.S.C. § 7422(a). And 26

U.S.C. § 6532(a)(1) provides that a taxpayer may not bring a suit “under section

7422(a) for the recovery of any internal revenue tax, penalty, or other sum . . .

before the expiration of 6 months from the date of filing the claim required under

such section.”

      Aside from the statutes describing the affirmative requirements for bringing

a tax refund suit, Congress has also expressly excluded from judicial review other

types of federal tax disputes. The Declaratory Judgment Act (“DJA”), 28 U.S.C. §

2201, which generally authorizes courts to issue declaratory judgments as a

remedy, excludes federal tax matters from its remedial scheme.7 See Raulerson v.

      7
          The Declaratory Judgment Act provides:

      In a case of actual controversy within its jurisdiction, except with respect to
      Federal taxes other than actions brought under section 7428 of the Internal
      Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in

                                              9
United States, 786 F.2d 1090, 1093 n.7 (11th Cir. 1986) (“Th[e DJA] proscribes

judicial declaration of the rights and legal relations of any interested parties in

disputes involving federal taxes.” (internal quotation marks omitted)). And the

Anti-Injunction Act (“AIA”), 26 U.S.C. § 7421, provides that, except for suits

brought under a handful of enumerated statutory exceptions, “no suit for the

purpose of restraining the assessment or collection of any tax shall be maintained

in any court by any person, whether or not such person is the person against whom

such tax was assessed.” 26 U.S.C. § 7421(a).

       Taking these provisions together, it is clear that, with certain exceptions not

applicable here, judicial review of IRS determinations is largely circumscribed to

entertaining suits for the refund of already-paid taxes. See Bob Jones Univ. v.

Simon, 416 U.S. 725, 731-32 & n.7 (1974) (noting the “congressional antipathy

for premature interference with the assessment or collection of any federal tax”

and that the “pressures operating on organizations . . . to seek injunctive relief


       any civil action involving an antidumping or countervailing duty proceeding
       regarding a class or kind of merchandise of a free trade area country (as defined in
       section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering
       authority, any court of the United States, upon the filing of an appropriate
       pleading, may declare the rights and other legal relations of any interested party
       seeking such declaration, whether or not further relief is or could be sought. Any
       such declaration shall have the force and effect of a final judgment or decree and
       shall be reviewable as such.

28 U.S.C. § 2201(a) (emphasis added).

                                               10
against the Service . . . conflict directly with a congressional prohibition of pre-

enforcement tax suits”). Against the backdrop of sovereign immunity, these

statutes prescribe the terms of the United States’ limited consent to be sued

regarding federal tax matters, and accordingly “define th[e] court’s jurisdiction to

entertain the suit.” Sherwood, 312 U.S. at 586.

                                          B.

      “Article III of the Constitution limits the jurisdiction of federal courts to

‘cases’ and ‘controversies.’” Socialist Workers Party v. Leahy, 145 F.3d 1240,

1244 (11th Cir. 1998). As we have explained, there are “three strands of

justiciability doctrine -- standing, ripeness, and mootness -- that go to the heart of

the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608 F.3d

1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted).

With regard to the third strand, the Supreme Court has made clear that “a federal

court has no authority ‘to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which cannot affect the matter

in issue in the case before it.’” Church of Scientology of Cal. v. United States,

506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)); see

Harrell, 608 F.3d at 1265. As a panel of this Court has put it, “[a]n issue is moot

when it no longer presents a live controversy with respect to which the court can

                                          11
give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570

F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). Moreover,

we do not determine questions of justiciability simply by looking to the state of

affairs at the time the suit was filed. Rather, the Supreme Court has made clear

that the controversy “must be extant at all stages of review, not merely at the time

the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting

Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974)).

                                          1.

      CC-FL contends that the district court erred in concluding that CC-FL could

not seek declaratory and injunctive relief after being granted a full refund because

of the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act.

CC-FL claims those statutes do not apply in post-enforcement refund suits (even

when there is no longer a live refund component to the suit), as opposed to pre-

enforcement suits filed before the assessment or collection of any tax. CC-FL’s

theory is that, having jumped through all of the congressionally-mandated hoops

by properly filing a refund claim for $261 to unlock the courthouse doors, it may

now seek the relief it wanted all along -- declaratory and injunctive relief -- even

when the $261 is no longer at issue.

      The government responds that this case has become moot, noting that the

                                          12
tax refund relief CC-FL seeks has been granted, and that there is no longer any

amount at issue for the suit years. The government points out that it was required

by statute to credit or refund the taxes at issue because the three-year collection

and assessment period had run. The government also notes that, as a general

matter, a refund suit for particular tax years decides only the tax liability for those

years, and not for future years. The government contends that CC-FL cannot

maintain this action simply as a vehicle to preemptively obtain favorable tax status

for future years. Forward-looking claims of this kind, the government argues, are

barred by the Anti-Injunction Act and the tax exception to the Declaratory

Judgment Act.

       The government has the better of the argument. Although neither the

Supreme Court nor this Circuit has squarely addressed whether declaratory and

injunctive relief are available in the context of a tax refund suit, the leading case

on the application of the Anti-Injunction Act is Bob Jones Univ. v. Simon, 416

U.S. 725 (1974). In Bob Jones, the Supreme Court made clear that the AIA

prohibits courts from entertaining pre-enforcement suits challenging the IRS’s

assessment or collection of federal taxes.8 The Court held that filing these


       8
          While the Supreme Court did not directly apply the DJA, it observed: “There is no
dispute, however, that the federal tax exception to the Declaratory Judgment Act is at least as
broad as the Anti-Injunction Act. Because we hold that the instant case is barred by the latter

                                                13
forward-looking suits, as opposed to paying the taxes arising from the dispute,

then claiming a refund, was contrary to the clear terms of the AIA preventing

courts from entertaining any “suit for the purpose of restraining the assessment or

collection of any tax.” Id. at 736 (quoting 26 U.S.C. § 7421(a)). The Court noted

that although the AIA “apparently has no recorded legislative history,” id., its

“principal purpose” is “the protection of the Government’s need to assess and

collect taxes as expeditiously as possible with a minimum of preenforcement

judicial interference, ‘and to require that the legal right to the disputed sums be

determined in a suit for refund.’” Id. at 736-37 (quoting Enochs v. Williams

Packing and Navigation Co., 370 U.S. 1, 7 (1962)).

       The facts and procedural posture of Bob Jones are instructive. Bob Jones

University, located in Greenville, South Carolina, is a private Christian university.

See id. at 734-35. At the time of the Supreme Court’s decision, the University

refused to admit African-Americans as students and prohibited its students from

interracial dating. Id. at 735. Although the University had been granted tax-

exempt status back in 1942 under a predecessor of what is now 26 U.S.C. §

501(c)(3), in 1970 the IRS announced that it would no longer allow tax-exempt



provision, there is no occasion to resolve whether the former is even more preclusive.” Bob
Jones, 416 U.S. at 732 n.7.

                                               14
status for schools maintaining racially discriminatory admissions policies.9 Id.

Before the IRS could take official action, Bob Jones University filed suit seeking

declaratory and injunctive relief to prevent the IRS from revoking the University’s

tax-exempt status.

       The Supreme Court recognized the substantial consequences revocation of

tax-exempt status can have on a 501(c)(3) organization and the powerful

incentives such organizations have to bring suits seeking declaratory and

injunctive relief. Id. at 731. Nonetheless, the Supreme Court recognized that

these “pressures operating on organizations facing revocation of § 501(c)(3) status

to seek injunctive relief against the Service pending judicial review of the

proposed action conflict directly with a congressional prohibition of such

pre-enforcement tax suits.” Id. The Supreme Court went on to observe that the

University could obtain review by paying income or employment taxes in full, and

then bringing a suit for a refund. Id. at 746-47. The Court conceded that the



       9
          Title 26 U.S.C. § 501(c)(3) is the provision of the Internal Revenue Code that grants
tax-exempt status to public charities. Notably, donations to 501(c)(3) organizations are tax-
deductible, unlike donations to 501(c)(4) organizations (the section at issue in this case).
Accordingly, revocation of 501(c)(3) status for a charity “is likely to result in serious damage to a
charitable organization,” because “[m]any contributors simply will not make donations to an
organization that does not appear on the Cumulative List [the IRS’ official list of approved
501(c)(3) organizations].” Bob Jones, 416 U.S. at 730. Unless they have a strong attachment to
the organization in question, individuals seeking to make tax-deductible charitable donations will
simply divert their largesse elsewhere in the event an organization loses its 501(c)(3) status.

                                                 15
government’s interest in protecting the administration of the federal tax system

from judicial interference can often lead to imperfect and harsh results for an

organization that has a dispute with the IRS:

             We do not say that these avenues of review are the best that can
             be devised. They present serious problems of delay, during which
             the flow of donations to an organization will be impaired and in
             some cases perhaps even terminated. But, as the Service notes,
             some delay may be an inevitable consequence of the fact that
             disputes between the Service and a party challenging the Service's
             actions are not susceptible of instant resolution through litigation.
             And although the congressional restriction to postenforcement
             review may place an organization claiming tax-exempt status in
             a precarious financial position, the problems presented do not rise
             to the level of constitutional infirmities, in light of the powerful
             governmental interests in protecting the administration of the tax
             system from premature judicial interference, and of the
             opportunities for review that are available.

Id. at 747-48 (citations omitted).

      Finally, in a footnote on which CC-FL heavily relies, the Supreme Court

emphasized that the University did not bring its case as a refund action. The Court

stated that “we have no occasion to decide whether the Service is correct in

asserting that a district court may not issue an injunction in such a suit, but is

restricted in any tax case to the issuance of money judgments against the United

States.” Id. at 748 n.22. The Court also noted that “there would be serious

question about the reasonableness of a system that forced a § 501(c)(3)



                                           16
organization to bring a series of backward-looking refund suits in order to

establish repeatedly the legality of its claim to tax-exempt status and that

precluded such an organization from obtaining prospective relief even though it

utilized an avenue of review mandated by Congress.” Id.

      CC-FL attempts to distinguish Bob Jones by claiming that the AIA and DJA

only apply to suits seeking purely declaratory and injunctive relief, filed before

any tax was assessed or collected. CC-FL argues that this case is different,

because it met all of the jurisdictional and statutory requirements for a refund suit,

and that this case falls into the scenario expressly left unresolved by the Supreme

Court in Bob Jones: a tax refund suit in which the claimant also seeks declaratory

and injunctive relief.

      Absent a live refund claim, however, CC-FL’s attempt to distinguish this

case from Bob Jones is unavailing. While CC-FL wanted to obtain its refund on

the most favorable grounds possible, a refund is a refund, and the IRS returned all

of the disputed taxes shortly after this litigation began. We need not decide today

the still-unresolved issue of whether, in a live refund suit, a court may also award

declaratory and injunctive relief. It is enough to say that, regardless of this case’s

origins as a tax refund suit, absent any live refund component, the district correctly

concluded that it was without jurisdiction to entertain a suit containing solely

                                          17
forward-looking claims seeking declaratory and injunctive relief from the IRS.

These types of suits are expressly proscribed by the DJA and AIA.

       The congressional response to Bob Jones is also instructive, and favors the

government’s position here. Congress recognized the potential harshness of the

Supreme Court’s holding for 501(c)(3) charities that might lose virtually all of

their donations, and responded to the “serious question” raised by forcing

501(c)(3) charities to repeatedly file backward-looking refund suits. Accordingly,

in 1976, Congress enacted 26 U.S.C. § 7428, which, in relevant part, permits the

United States Tax Court, the United States Court of Federal Claims, or the United

States District Court for the District of Columbia to entertain declaratory judgment

actions “with respect to the initial qualification or continuing qualification of an

organization as an organization described in section 501(c)(3).” 26 U.S.C. §

7428(a); see Tax Reform Act of 1976, Pub. L. No. 94-455, § 1306, 90 Stat. 1520

(1976).10

       Notably, however, Congress did not enact any exception to the Declaratory

Judgment Act or Anti-Injunction Act for organizations seeking tax-exempt status

under other provisions of section 501(c), including for organizations like CC-FL



       10
          In this vein, Congress also amended the DJA, 28 U.S.C. § 2201, to carve out an
exception (to the broader federal tax exception) for suits brought under 26 U.S.C. § 7428.

                                               18
seeking tax-exempt status as a social welfare organization under section 501(c)(4).

We find this distinction meaningful, and decline to read additional remedies into

the legislative scheme chosen by Congress. “Where Congress has provided a

comprehensive statutory scheme of remedies, as it did here, the interpretive canon

of expressio unius est exclusio alterius applies.” Christ v. Beneficial Corp., 547

F.3d 1292, 1298 (11th Cir. 2008); accord Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1171 n.15 (11th Cir. 2003). The principle of expressio unius simply

says that when a legislature has enumerated a list or series of related items, the

legislature intended to exclude similar items not specifically included in the list.

See United States v. Castro, 837 F.2d 441, 442 (11th Cir. 1988) (“A general guide

to statutory construction states that the mention of one thing implies the exclusion

of another; expressio unius est exclusio alterius.”) (internal quotation marks

omitted). Thus, it is clear that Congress has granted organizations claiming

501(c)(4) tax-exempt status fewer avenues for judicial relief than those

organizations seeking 501(c)(3) status.

                                          2.

      CC-FL also contends that the case is not moot because it seeks more than

the mere refund of $261 in federal taxes, and that collateral consequences result

from the failure of the IRS to issue a favorable determination letter. CC-FL lists

                                          19
three primary consequences that, it claims, warrant further relief: (1) “CC-FL is

deprived of the advance public recognition of its exempt status for future tax

years,” and must instead continue to file federal corporate tax returns; (2) “donors

are less likely to contribute to an organization treated as a for-profit corporation by

the [IRS] rather than one recognized as exempt from federal income taxes”; and

(3) CC-FL will have to pay state taxes because “Florida state tax liability is

controlled by its federal tax status.” See Fla. Admin. Code r. 12-12C-

1.022(1)(e).11

       We are not persuaded. These consequences do not allow us to carve out an

exception to the unambiguous prohibitions found in the Anti-Injunction Act and

Declaratory Judgment Act. In the first place, we have no power to rewrite the

language of these statutes. United States v. Blue Cross and Blue Shield of Ala.,

Inc., 156 F.3d 1098, 1111 (11th Cir. 1998) (“When the language of a statute is


       11
            Fla. Admin. Code r. 12-12C-1.022(1)(e) provides, in relevant part:

                Any nonprofit or other tax-exempt organization, including a private
                foundation, which is exempt from federal income tax under Section
                501(a), I.R.C., and is described in Section 501(c), I.R.C., is required to file
                a Form F-1120 [Florida corporate income tax return] only when such
                organization has “unrelated trade or business taxable income,” as
                determined under Section 512, I.R.C., or is filing a Form 990T with the
                Internal Revenue Service.

(emphasis added). In other words, as a general matter, organizations recognized by the IRS as
tax-exempt do not have to file state corporate tax returns in Florida.

                                                  20
unambiguous, we are bound to give it its plain meaning . . . .”); see also Bob

Jones, 416 U.S. at 750 (“Congress . . . is the appropriate body to weigh the

relevant, policy-laden considerations” of permitting not-for-profit organizations to

obtain preventative injunctive relief against the IRS) (emphasis added).

      Moreover, CC-FL’s arguments prove far too much. As for CC-FL’s future

federal and state tax liabilities, if those were sufficient to permit the district court

to retain jurisdiction over the suit, then the limitations found in the Anti-Injunction

Act and Declaratory Judgment Act would be rendered meaningless. Any taxpayer

denied tax-exempt status will have to pay federal and state taxes going forward. If

we were to adopt the rule urged by CC-FL, then all adverse IRS determinations

regarding an organization’s claim to tax-exempt status would be susceptible to

challenge in federal district court.

      The Supreme Court’s discussion in Bob Jones also highlights the weakness

of CC-FL’s claim that it would suffer reduced donations if denied declaratory or

injunctive relief. Donations to 501(c)(3) charities -- unlike those to 501(c)(4)

organizations that engage in lobbying activity -- are generally tax deductible, see

26 U.S.C. § 170, meaning that revocation of an organization’s 501(c)(3) status will

likely result in a massive drop in donations to that organization, as donors seeking

favorable tax treatment make contributions elsewhere. Presumably recognizing

                                           21
this distinction, CC-FL instead says that donors will have more “peace of mind” in

donating to a 501(c)(4) organization because those potential donors can rest

assured that the organization will not use those donations for the “private

inurement” of its members. See 26 U.S.C. § 501(c)(4)(B). But if the severe

consequences of losing tax exempt status for a 501(c)(3) organization, even the

potential “ruination of the taxpayer’s enterprise,” were deemed by the Supreme

Court insufficient reason to carve out an exception to the AIA, see Bob Jones, 416

U.S. at 745, 747, then CC-FL’s far more modest claim would seem to be plainly

insufficient to avoid the clear terms of the AIA and DJA.

      CC-FL’s collateral consequences argument is, at best, an incomplete attempt

to satisfy the narrow judicially-created exception to the Anti-Injunction Act. In

Enochs v. Williams Packing, the Supreme Court held that a taxpayer may seek

preventative injunctive relief against the IRS only upon satisfying two

independent prongs: first, that he will suffer “irreparable injury” if not awarded

injunctive relief, and second, “that under no circumstances could the Government

ultimately prevail.” 370 U.S. at 6-7. CC-FL’s claim of collateral consequences

bears solely on the first prong of the Williams Packing test. The Supreme Court

has made clear, however, that a taxpayer must establish both prongs of the judicial

exception to the Anti-Injunction Act before a court may entertain his claim for

                                         22
injunctive relief against the IRS. See Alexander v. “Americans United” Inc., 416

U.S. 752, 762 (1974) (“[A]llowing injunctive relief on the basis of this showing

[of irreparable injury] alone would render [the Anti-Injunction Act] quite

meaningless.”); accord Bob Jones, 416 U.S. at 745 (“Williams Packing switched

the focus of the extraordinary and exceptional circumstances test from a showing

of the degree of harm to the plaintiff absent an injunction to the requirement that it

be established that the Service’s action is plainly without a legal basis.”). And

CC-FL has not shown, or even argued, that the IRS’s adverse determination is

plainly without a legal basis or that under no circumstances could the IRS prevail.

In short, the collateral consequences advanced by CC-FL do nothing to undermine

the conclusion that this suit was rendered moot upon the full refund of taxes by the

IRS.

                                          C.

       CC-FL’s final claims are drawn from the judicially-created exceptions to the

mootness doctrine. CC-FL first contends that even if the full refund of taxes

would ordinarily render a refund suit moot, this case falls under the exception to

the mootness doctrine governing cases or controversies “capable of repetition yet

evading review.” “[T]he capable-of-repetition doctrine applies only in exceptional

situations, and generally only where the named plaintiff can make a reasonable

                                          23
showing that he will again be subjected to the alleged illegality.” City of Los

Angeles v. Lyons, 461 U.S. 95, 109 (1983) (citing DeFunis v. Odegaard, 416 U.S.

312, 319 (1974)). As the Supreme Court has made clear, the exception applies

only where “(1) the challenged action is in its duration too short to be fully

litigated prior to cessation or expiration; and (2) there is a reasonable expectation

that the same complaining party will be subject to the same action again.’” Davis

v. FEC, 554 U.S. 724, 735 (2008) (quoting Spencer v. Kemna, 523 U.S. 1, 17

(1998)); see also Bourgeois v. Peter, 387 F.3d 1303, 1308 (11th Cir. 2004).

      The first prong of the exception -- that the challenged action is too short to

be fully litigated -- is not met here. Nothing about the IRS’s adverse

determination or assessment and collection of taxes is “too short to be fully

litigated.” Every year in which CC-FL pays taxes, it may claim a refund, and,

should the IRS fail to provide the refund within the six month statutory period,

CC-FL may file a refund suit and obtain full judicial review of the dispute. As the

Supreme Court has noted, “[t]hese review procedures offer petitioner a full, albeit

delayed, opportunity to litigate the legality of the Service’s revocation of tax-

exempt status and withdrawal of advance assurance of deductibility.” Bob Jones,

416 U.S. at 746. CC-FL says that it is too easy for the IRS to simply refund the

taxes, either within the six month statutory period or shortly after litigation begins,

                                          24
but that complaint does not fit within the narrow exception to mootness for cases

“evading review.” Rather, it is a complaint that the congressional scheme for

challenging adverse determinations by the IRS is too limited. However

inequitable or frustrating CC-FL may find this statutory scheme, the Supreme

Court has made clear that “the problems presented do not rise to the level of

constitutional infirmities.” Id. at 747. Accordingly, we decline to use this

exception to the mootness doctrine to create an end-run around the AIA and DJA.

       Nor is the second prong of the exception -- a reasonable expectation that the

complaining party will be subject to the same action in the future -- met here. It is

true, if stated broadly enough, that this case involves an issue (CC-FL’s tax

exempt status) that is likely to arise in future years yet may never be fully

considered by a federal court (because in a given year, CC-FL may incur no tax

liability, or the IRS may choose to refund the inevitably small amount of CC-FL’s

claim within the six month statutory window rather than litigate, as it did with

respect to the 2005 and 2006 tax years). But a proper framing of the issue raised

in this litigation is a narrower one.12 The issue is not whether CC-FL is a tax-



       12
            Moreover, even if we frame the issue broadly, CC-FL still cannot meet the first prong
of the mootness exception for cases capable of repetition yet evading review, because the IRS’s
adverse determination and demand for taxes in any given tax year are not too short in duration to
be fully litigated.

                                               25
exempt organization, now and in the future, but rather whether it was entitled to a

refund for the past tax years 1991 and 1994-2000. “Income taxes are levied on an

annual basis. Each year is the origin of a new liability and of a separate cause of

action.” Commissioner v. Sunnen, 333 U.S. 591, 598 (1948). And as the Supreme

Court has said, “there must be a reasonable expectation or a demonstrated

probability that the same controversy will recur involving the same complaining

party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (emphasis added) (internal

quotation marks omitted). The same controversy -- CC-FL’s tax liabilities for the

years 1991 and 1994-2000 -- is not an issue capable of repetition. Rather, the

hypothetical future controversy advanced by CC-FL would be at most a similar

one. The tax amounts in dispute and the nature of the claim for a refund are

specific to each individual tax year. Sunnen, 333 U.S. at 598. Similarly, the

proper resolution of CC-FL’s claim to tax-exempt status in a given tax year will

depend on CC-FL’s conduct in that year. Thus, for example, the IRS or the

district court would have to determine whether, in the specific tax year at issue,

CC-FL has engaged in “direct or indirect participation or intervention in political

campaigns on behalf of or in opposition to any candidate for public office.” 26

C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

      CC-FL’s second claim is that the IRS has voluntarily ceased its unlawful

                                         26
conduct by refunding the taxes at issue, and that its voluntary cessation in

response to this litigation does not render the case moot. We recently discussed

the “voluntary cessation” exception to mootness in Harrell v. The Fla. Bar, noting

that “it has long been the rule that voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and determine the case, i.e., does

not make the case moot.” 608 F.3d at 1265 (internal quotation marks and

alteration omitted). When a party abandons a challenged practice voluntarily, the

party alleging mootness -- here, the IRS -- bears the burden of demonstrating that

the wrongful activity is not likely to recur. Id. The burden requires a showing

that: “(1) it can be said with assurance that there is no reasonable expectation . . .

that the alleged violation will recur, and (2) interim relief or events have

completely and irrevocably eradicated the effects of the alleged violation.” Id.

(quoting Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)).

      While CC-FL rightly calls this a “heavy burden,” see Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), it fails to

recognize that the predicate condition has not been satisfied here. In refunding the

amounts at issue in this case, the IRS did not abandon its practice or position --

voluntarily or otherwise -- that CC-FL is not a tax-exempt organization and that

CC-FL should have paid corporate income taxes for the years at issue in the suit.

                                           27
Rather, the IRS was required by statute to credit or refund the taxes at issue

because the three year statutory period for assessing and collecting those taxes had

run. See 26 U.S.C. §§ 6401(a), 6402(a), 6501(a), 6501(g)(2). As the IRS points

out, CC-FL’s refund was not granted in response to pending litigation, “but rather

was compelled by the operation of the Internal Revenue Code.”13

       The order and judgment of the district court dismissing this case as moot are

AFFIRMED.




       13
           This point also highlights the possibility that, should a similar dispute over CC-FL’s
tax exempt status arise in a future tax refund suit, the “voluntary cessation” exception to
mootness may have a role to play if the IRS fails to refund the disputed taxes within the six
month statutory period, and then later refunds the taxes after litigation begins, solely to deprive
the court of jurisdiction and without any independent basis for granting the refund. We offer no
opinion on the merits of a voluntary cessation claim presented under such circumstances, as those
circumstances do not describe the case currently before us.

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