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TITLE 26-INTERNAL REVENUE CODE
SUBTITLE A-INCOME TAXES
CHAPTER 1-NORMAL TAXES AND SURTAXES
Subchapter 0-Gain or Loss on Disposition of Property
PART V-CHANGES TO EFFECTUATE F.C.C. POLICY
§ 1071. Gain from sale or exchange to effectuate policies of F.C.C. (a) Nonrecognition of gain or loss
If the sale or exchange of property (including stock in a corporation) is certified by the Federal Communications Commission to be necessary or appropriate to effectuate a change in a policy of, or the adoption of a new policy by, the Commission with respect to the ownership and control of radio broadcasting stations, such sale or exchange shall, if the taxpayer so elects, be treated as an involuntary conversion of such property within the meaning of section 1033. For purposes of such section as made applicable by the provisions of this section, stock of a corporation operating a radio broadcasting station, whether or not representing control of such corporation, shall be treated as property similar or related in service or use to the property so converted. The part of the gain, if any, on such sale or exchange to which section 1033 is not applied shall nevertheless not be recognized, if the taxpayer so elects, to the extent that it is applied to reduce the basis for determining gain or loss on sale or exchange of property, of a character subject to the allowance for depreciation under section 167, remaining in the hands of the taxpayer immediately after the sale or exchange, or acquired in the same taxable year. The manner and amount of such reduction shall be determined under regulations prescribed by the Secretary. Any election made by the taxpayer under this section shall be made by a statement to that effect in his return for the taxable year in which the sale or exchange takes place, and such election shall be binding for the taxable year and all subsequent taxable years.
For basis of property acquired on a sale or exchange treated as an involuntary conversion under subsection (a), see section 1033(b).
TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE
PART VI-PARTICULAR PROCEEDINGS
CHAPTER 158-ORDERS OF FEDERAL AGENCIES;
2342. Jurisdiction of court of appeals.
2344. Review of orders; time; notice; contents of petitions; service. 2345. Prehearing conference.
Certification of record on review.
2347. Petitions to review; proceedings.
2348. Representation in proceeding; intervention.
2349. Jurisdiction of the proceeding.
2350. Review in Supreme Court on certiorari or certification. 2351. Enforcement of orders by district courts.
§ 2341. Definitions
As used in this chapter
(1) "clerk" means the clerk of the court in which the petition for the review of an order, reviewable under this chapter, is filed;
(2) "petitioner" means the party or parties by whom a petition to review an order, reviewable under this chapter, is filed; and
(3) "agency" means—
(A) the Commission, when the order sought to be reviewed was entered by the Federal Communications Commission, the Federal Maritime Commission, the Interstate Commerce Commission, 24 or the Atomic Energy Commission, as the case may be;
(B) the Secretary, when the order was entered by the Secretary of Agriculture; and
(C) the Administration, when the order was entered by the Maritime Administration.
§ 2342. Jurisdiction of court of appeals
The court of appeals (other than the United States Court of Ap peals for the Federal Circuit) 25 has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47;
(2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except orders issued under sections 210(e), 217a, and 499g(a) of title 7;
(3) all rules, regulations, or final orders of
(A) the Secretary of Transportation issued pursuant to section 2, 9, 37, 41, or 43 of the Shipping Act, 1916 (46 U.S.C. App. 802, 803, 808, 835, 839, and 841a); and
(B) the Federal Maritime Commission issued pursuant to
(i) section 23, 25, or 43 of the Shipping Act, 1916 (46 U.S.C. App. 822, 824, or 841a);
23 Public Law No. 88-554, 80 Stat. 621, Sept. 6, 1966. This statute, in part, revises, codifies, and re-enacts the Judicial Review Act enacted as Public Law 901, 81st Congress, 2d Sess., approved December 29, 1950, 64 Stat. 1129, 5 U.S.C. §§ 1031-1042, which has been repealed.
24 Subparagraph (3)A) was amended by Public Law 93-584, approved January 2, 1975, 88 Stat. 1917, to add the Interstate Commerce Commission.
25 Sec. 2342 was amended by Public Law 97-164, approved April 2, 1982, 96 Stat. 25, 41, by adding "(other than the United States Court of Appeals for the Federal Circuit)" after "court of appeals."
(ii) section 19 of the Merchant Marine Act, 1920 (46 U.S.C. App. 876);
(iii) section 2, 3, 4, or 5 of the Intercoastal Shipping Act, 1933 (46 U.S.C. App. 844, 845, 845a, or 845b);
(iv) section 14 or 17 of the Shipping Act of 1984 (46 U.S.C. App. 1713 or 1716); or
(v) section 2(d) or 3(d) of the Act of November 6, 1966 (46 U.S.C. App. 817d(d) or 817e(d);
(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42; and
(5) all rules, regulations, or final orders of the Interstate Commerce Commission made reviewable by section 2321 of this title and all final orders of such Commission made reviewable under section 1190(j)(2) of title 49, United States Code. 26 Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.
§ 2343. Venue
The venue of a proceeding under this chapter is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.
§ 2344. Review of orders; time; notice; contents of petition; service
On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of
(1) the nature of the proceedings as to which review is sought;
(2) the facts on which venue is based;
(3) the grounds on which relief is sought; and
(4) the relief prayed.
The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
§ 2345. Prehearing conference
The court of appeals may hold a prehearing conference or direct a judge of the court to hold a prehearing conference.
26 Paragraph (5) was added by Public Law 93-584, 88 Stat. 1917, approved Jan. 2, 1975. It was amended by Public Law 96-454, 94 Stat. 2011, 2021, Oct. 15, 1980, which added "and all final orders
Former subsection 2342(6) read as follows:
(6) all final orders of the Merit Systems Protection Board except as provided for in section 7703(b) of title 5.
It was added by Public Law 95-454, 92 Stat. at 1144, Oct. 13, 1978; and subsequently it was deleted by Public Law 97-164, 96 Stat. 25, 41-42, April 2, 1982.
§ 2346. Certification of record on review
Unless the proceeding has been terminated on a motion to dismiss the petition, the agency shall file in the office of the clerk the record on review as provided by section 2112 of this title.
§ 2347. Petitions to review; proceedings
(a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law.
(b) When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall—
(1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law;
(2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or
(3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is governed by the Federal Rules of Civil Procedure.
(c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that— (1) the additional evidence is material; and
(2) there were reasonable grounds for failure to adduce the evidence before the agency;
the court may order the additional evidence and any counter-evidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or the order setting aside the original order.
§ 2348. Representation in proceeding; intervention
The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order. The Attorney General may not dis
pose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute, defend, or continue the proceeding unaffected by the action or inac tion of the Attorney General.
§ 2349. Jurisdiction of the proceeding
(a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.
(b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days' notice of the hearing thereon shall be given to the agency and to the Attorney General. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the ap plication for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evidence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and specifying the nature of the damage. The court of appeals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the application.
§ 2350. Review in Supreme Court on certiorari or certification
(a) An order granting or denying an interlocutory injunction under section 2349(b) of this title and final judgment of the court of appeals in a proceeding to review under this chapter are subject to review by the Supreme Court on a writ of certiorari as provided by section 1254(1) of this title. Application for the writ shall be made within 45 days after entry of the order and within 90 days after entry of the judgment, as the case may be. The United States, the agency, or an aggrieved party may file a petition for a writ of certiorari.
(b) The provisions of section 1254(3) of this title, regarding certification, and of section 2101(f) of this title, regarding stays, also apply to proceedings under this chapter.