government believes my client violated the internal revenue and if i can't discern the reasons why the government believes my client by late then that means mr court also could not possibly discern the reasons why the government believes my client flatly and the code is well to enforce and i rest summons the government has to put forth a declaration of a revenue region that demonstrates a reasonable basis to believe that the taxpayer with the target of the investigation by indeed the code in some way  two but is there any other place is there any other place that uses reasonable racist language there there is the root of that language comes from two cases i traced  different standards one for a john doe where you don't know who it is one for what you do it seems really funny to me to have the same standard for both i don't think i don't think that it's unusual at all i judge sutton in t decision from nine hundred and eighty one dollars says the exact same thing and three and those three cases have the same underlying trends and that is that any known tax and under one taxpayer does not receive more substantive protection then known tax payers in the seven thousand six hundred and nine congress council may be a way to think about this is let's if you if you're wrong about this argument and the reasonable basis standard doesn't apply to this do you lose no you know ok so how does the case work in that setting and that setting if we go strictly based on saying a legitimate purpose is what it is and that reasonable basis put is no r which kind of dovetails with the relevance portion of how if you're asking for bank records you always pretty much established relevance in the tax context because when you're doing the financial matters bank records are problems oh he's going to be relevant really have a situation where the revenue legion cannot muster any facts whatsoever to show he has a legitimate purpose to believe and again this is just suspicion just legit basis to believe that shelter it would be if we had a sufficient factual basis to put that together the court if there were you're requiring exactly what give me a hypothetical about what the declaration should have included to meet the rigid i'm sure just the bare minimum would be i'm investigating the taxpayer the target for violations of x provision of the code  i believe they violated because for x y and z reason and if you take a look at pregnant which is a declaration from the same right you i'm sorry if you take a look at i'm sorry just more if you take a look at the declaration that seem revenue reagent submitted in pregnancy which is a case that the government relied upon in the district court and in this court you'll see that the factual content of the declaration is much more not only that but if you take a look at united states versus quark which is a supreme court decision or two thousand and fourteen the taxpayer can get an evidentiary hearing and cross examine the revenue region if he or she brings forth a sufficient factual basis trees a plausible inference of benefit how can you possibly do that in a case like this where the revenue agent put puts worth no factual basis whatsoever to the investigation taxpayer no if he or she were doing something that could constitute an abusive check shelter taxpayer not in the cat's care no because the taxpayers the one who is filing the tax returns and the taxpayer is the one who's in gauging in the business that there wasn't a taxpayer know what was the likely source of the government nation she does no good she is listed as the age and a bunch of incorporated entities right right and but none of those none of those entities though are being investigated by the i r s for the violations of the code they're specified in the revenue agents declaration that's number one number two the conduct that she's engaged in is presently done in the united providing and that's what is what i say to tell me what the key point is i think judge moore is right if the point is notice and you identified a statutory section you know what they're looking for and you know you get it or you didn't the reasonable basis argument that we that we have and the sources for that better i don't see how you can possibly put forth a legitimate purpose by just putting forth the bare recitation of i'm investigating someone she's aware of that as she and her declaration she did not know about the investigation in terms of never actually yes yes she should even ask her new agent what is the what is this investigation of barry and he refused to under investigation by the i r s she knew he was under investigation but she had no idea if i was that's what i thought ok she knew it was that for actual news right now she did not know that well she knows that from the applies here so those i guess are helpful perspectives from your approach i will say maybe this is just my own ignorance i'm a little surprised how this works it's obviously very deeply private information to go to someone's bank and look at their private records i'm frankly just a little surprised that you don't have something like a th amendment standard where you have some some reasonable is not an absence of bad faith but just some reason for getting a deeply private thing i mean these bank records could well be in her house and i suspect you wouldn't be allowed to use powell to get the bankrupt get the records from so she has both sides to the puzzle by why the government gets to get something interact we better get directly without a showing i'm not making the reasonable problem not making a reasonable basis point i'm not making investigation under powell having given broad latitude the i r s simply because we have a voluntary compliance a system where everyone we hope reports their mission accurately the only way to provide a check is to give the iris power to protections you've made big important civil criminal distinction is how does it work if you get one of these subpoenas you get the bank records and you realize not only was the suspect or the unaware of any rule that bars it however there are protections built in for instance part of the requirement in agent congress declarations that no will for a justice department criminal prosecution has been done at this point so there is no investigation going on and use the civil summons to further so there are protections built in i can't say that if information were developed through the civil process that a criminal for all could not be made that that unless there's a specific congressional expressed intent to limit that authority the court should not do that and so you're right there is a concern but again there are checks on that st so hypothetically if it i civil investigation of someone like me byers produced evidence that she was criminally violating d the tax would how would you protect the information that's a change in the civil case against being used in the criminal case so your honor if that were to happen the i r s has a system that's been put in place after the and ultimately would come to d o j criminal section for any prosecution report so there are new almost all of those protections and all of that review would be with the information they got through the s from the subpoena and the subsequent criminal case you're i'm not aware and he's pro have bishan on using an object it would have to meet the standards and miss ability and the rules of evidence of a suspect of being in this law a criminal case but there's no prohibition as long as the irises not using the civil procedures to further an ongoing criminal investigation but there is no as a record i said there is no ongoing criminal investigation here so the i r s is not is not engaging that i'm a little puzzled by this cart before the horse it seems like that's not true at all i i just it's really amazing i mean we obviously  s supreme court has the rules and but i really find it amazing that this could be used in a criminal case has there been any criminal case that is challenge the new material that  question is were the constitutional issues that we have been roaming around here were they raise in this case or are we just speculating as judges hear about hypothetical as to the actual elements of proof of actual basis to prove the taxpayer committed a violation and certainly in the progress case he cited there was more detail but in other cases including a gertner where the prima facia show the court because you're not focusing on the ten for the tax return of the actual person the spire runner companies go to whether misfires aided and abetted or directly marketed tax shelters to rd party through entities investigation would include both her at potential other entities or persons to which she may have promoted an abuse of actual if your opponent started out with the argument that we should be applying the seventy between the taxpayer and somebody else that generates red flags you're allowed to have an audit that doesn't require any great trigger you asked the individuals so cooperate my information t like i said red flags what then would i risk be able to use the subpoena power so for example this very case she said no i would rather not cooperate because they subpoena the bank records from her with the thank you i would like to address the government's assertion that gertner is the only case on point aside from tiffany fine arts and stream court that somehow says that standard under seventy provides a particular set of and a and b provide a different but but similar set in terms of the notice and the opportunity to intervene no there's no there's no the only the only in to protect the no taxpayers rights that's a procedural protection is not a substantive protection the substantive protection comes from powell and the cases that hell relies upon and to address the point from judge a question aside because it can be used in a subsequent criminal investigation and with respect to the cart before the horse argument that the government makes we're not putting any c