That is the question for Judge Nega in Family Office Foundation, Inc, Docket No. 10779-23X, filed 9/15/26. This is a DJ reviewing IRS’ retroactive revocation under Rule 217. The Faily claims this is a recordruler, so no Branerton needed.

Family claims Section 7428 limits review to Administrative Record, and since no disupute about contents thereof, no need for any discovery. Family also claims no legal basis for Rule 217.

No, says Judge Nega. 

“There is a sound legal basis for Rule 217. That basis is section 7428. Congress directed that the Tax Court should take a leading role in developing the procedural rules used by courts with jurisdiction over cases arising under section 7428. See H.R. Rep. No. 94-658, at 285 (“’suggest[ing] that the district courts give special weight to Tax Court precedents developed in this area’). In fact, Congress chose the effective date of section 7428 in part to give this Court ‘an opportunity to establish any necessary rules and otherwise make administrative preparations.’ S. Rep. No. 94-938(I), at 590. Congress expected we would leverage our then-recent experience with section 7476 to promulgate rules tailored to the needs of section 7428, and for other courts to follow that example. S. Rep. No. 94-938(I), at 588 (1976). Rule 217 is the product of that direction. See Declaratory Judgments—Retirement Plans, Section 367 Exchanges, Exempt Organizations, Rule 217, 68 T.C. 1031, 1047–51 (1977). From the beginning, the Rule has drawn a sharp distinction between rejections and revocations.” Order, at p. 3.

Initial IRS qualification review is limited to applicant’s say-so. IRS doesn’t investigate what applicant says, only that they said the right stuff. But revocation is another story and is most often based on what applicant did (or didn’t do), not only what they said maybe years before. Plenty of fact questions here.

So discovery is in order. And Family can fight about what’s in the Administrative Record afterward.