first to what i think are the clearly the claims that are clearly subject to reversal by the just record and i don't claim to just be fair i don't think we meant that order to be this controls the case that just came out subsequent to briefing and i'm not and i'm not saying that that's what the court said but i do think in looking at that case that the holding of the case does control at least some of the claims that are within this lawsuit the one that i think clearly it clean troels is the claim that in september of two thousand and thirteen after the assessment by the city a city of finance official came onto the property without consent to a warrant to investigate the  property and that was after the assessment and the court found that the just record found that that claim was still barred under the tax injunction act and i think relying upon authority from this court from the ninth circuit there's one specific case drawings west in culver says california state board of equalization to the effect that even an indirect restraint of either the assessment or collection of the tax is still subject to the tax  that sense the district court would be correct and i think the johns case would be correct but then taken narrowly as the supreme court did in the direct marketing association case you would have to actually restrain actually enjoying either the assessment or the collection of the tax so i think that particular portion of the complaint clearly is controlled by direct marketing association now there's another portion which is another fourth amendment claim as the court knows and that's the portion  to the effect that we are claiming that that particular section is unconstitutional set aside from the fact of the actual assessment i think direct marketing also controls and there once again what courts i'm lost here will because i made a request to do the audit and so forth but your objection your client's objection stood there was no audit or inspection of the books and records was there but but there was no but there was an estimate like there was an estimate based on that and the estimate of how much you're going to make an assessment without making the estimate well i guess agree i think the section they relied on to make the demand was based on this twenty point fifteen something should be the what i think the court is saying is that that there was a natural assessment afterwards for what i'm saying is that part of the challenge we're making is that that particular section is unconstitutional in and of itself how  of whether he has applied to him whether in fact submitted to or done that's what i'm saying we have a claim in the first claim for relief that that ordinance in of itself is unconstitutional so to that effect i would say that  direct marketing does apply because it's a pre assessment ordinance it's not the actual assessment itself what happens afterwards may be subject to the tax injunction act but not the actual warning itself that's at play here twenty but no i think there were two parts to the claim one was that the city used an ordinance that would be facially unconstitutional didn't use the ordinance because your behind client's books and records were never inspect into play but i think my client still has the right to face only challenge the ordinance itself whether in fact he has actually submitted or not the facial challenge is independent of whether in fact he has submitted or not it's doesn't matter whether it's a as applied to him or not although i think in this case it was us applied because i think the what triggered the estimator assessment is not submitting to the audit and it's the assessment itself that would be subject to the tax or junction act not the actual ordinance itself that's say it was he certainly had an assessment they certainly we've played facts that they've asked for under that ordinance and that he denied it under that ordinance and that's what triggered the estimated assessment he didn't allow the the application of that ordinance by submitting to it and that's what triggered it i would think that would be an injury in fact that would satisfy article three standing turning to the actual assessment itself there  get into the issue of the penalty and the circuit split between the seven the fifth circuit and that i would submit there the direct marketing association does have some bearing on that and i think at page seventeen of  answering brief they make the argument i think it was made also in the lower court in the just record that our argument that the tax injunction act can somehow tracked the anti injunction act the federal int and junction act are two disparate acts and therefore there's no analogy between that that was directly held to be not the case in the direct marketing association and their justice thomas indicated in his opinion that the tax injunction act in fact was modeled after then tell you if you don't connect and therefore we take the terms to be the same so the words restrain assessment levy collection are taken to be the same and then my argument under civilians was that for purposes of the anti injunction act the statutory text of the affordable care act which used the word penalty was taken at its face value that a penalty is a penalty for purposes of anti injunction act and did not bar the claim even though later the court did find i correctly appellee the city argues correctly that later they found that for purposes of the congress's taxing power it was a tax but that was what they had to decide first was whether then time junction applied and they found that the end times junction acted not applied because the word penalty was on the statutory text here the city itself has submitted information  by way of judicial notice in the lower court and this court twenty one point zero five i believe b which talks about the words penalties that's what in fact was assessed against my client penalties and i would also submit that the penalties under twenty five twenty one point zero five be talks about penalties as forty percent of the tax i would think that that's more than costs of minister and even if one gets into the argument of whether this is a cost or a deterrence just on the face of the ordinance itself it's clearly forty percent seems to me logically can be implied to be a good turns and not just the cost of administration but i do think that nat direct marketing association by making the analogy between the junction act and the tax and and injunction act has probably candice one doesn't need to necessarily get into the circuit split because if in fact it's merely a question of good morning deputy city attorney dan whitley on behalf of the city of los angeles i think initially i'd like to address some of the points that were raised by appellant in particular with direct marketing which the city disagrees that it's going to have any of yours and i'm sorry the city disagrees that will have any effect on the outcome of this case but certainly should be addressed it is president's come out since we argued this in the lower court i think the key issue in direct marketing isn't whether you're addressing the investigation of tax or the assessment of the tax the the question that the court is directing us to is does the relief sought stop an assessment that could happen either before or after an assessment is made in direct marketing what the plaintiffs had asked for requirement under the supreme court's view if the government was stopped from imposing either of those requirements no assessments would be stopped in the courts correct if if the government can't force a  report a sale to the government the government can still make this has meant against used access and it's unaffected by that court order the investigation process may be more difficult he may need to hire more investigators he may need to take other procedural actions but his government can still make that assessment and so the court then goes on to say that any interference with the investigation process or tax information process isn't and isn't impacted by the tax or tax exemption act that's what we have here what we have here is a taxpayer saying that an assessment should be undone because the the city's a termination was unreasonable because they asked for his records so here there is no relief the district court can give that wouldn't stop the assessment against the taxpayer if if the court says you're right the the city couldn't pass your records or your right the city had to subpoena your records or any sort of relief that would that would address the point is complaint the city could not have made that assessment the city can't say we're going to ignore the just records order and still make the assessment that's not what happened in direct marketing direct marketing the government could say all right we're not going to i don't know if we can still make we can still make the assessment and you have you what should  that anything that appellant has raised today should be addressed by the principal comedy under mcnairy which then went on to say that although the tax injunction act may not actually an even get to the tax injunction act they just said that under principles of comedy that the suits not be taken should be dismissed with prejudice for two reasons one is that the pellant was offered a chance to amend the complaint earlier in particular with the allegation that the you don't do dispute that mr whing has a state remedy  not when you say it should be with prejudice you're not trying to say there's this alternative reason why the claim should be extinguished forever your argument is it's in the wrong place it exactly you are the court never got to ours are substantive dismissal arguments let me ask you why not why i why should that be covered well the main reason is that these are these are tax penalties under any view of penalties under either of the seven i believe the seventh circuit was not speaking of not analyze this is well as they should have under any view of a tax penalty these are not regulating business activities on a regular media havior they're regulating revenue generating activity which is the basis of what the tax is that that's that's the whole point of the bite our test every other test every circuit uses is this to regulate conduct or to collect revenue this is a late filing penalty it's just like the late filing penalty under the federal internal revenue code if the taxpayer doesn't pay on time the penalties imposed it's just to collect revenue to the extent that it 's regulating any conduct it's tax conduct and so i think any any thorough analysis of that issue should find that these penalties are subject under the tax a tax injunction actually the other problem here is that because these penalties apply automatically there's no separate decision the city makes other than taxes weren't paid on time so there's there's no conduct to be regulated other than the payment payment of the tax itself the only way to challenge the tax is the say that i did actually paid on time which is an issue here or the amount of tax we owe is less than what the city initially assessed so these penalties are part and parcel of the underlying assessment and so that under through i think our brief address that thoroughly and so to the district court's opinion is that these penalties don't regulate any conduct other than tax conduct they go into the cities general fund not to some specific purpose the penalties are administered by a regulatory agency that are administer by the office of finance and they're soley related to the generation of revenues they don't regulate any business or personal activity and so when under the biter tests there are penalties and i would point out that under sebelius when they're when they're addressing whether something is a tax for constitutional purposes the courts applying a very similar test really look at what the point of the penalty is where the revenues are going who is who is imposing it and making that information so i see no indication that b was not necessarily controlling in all situations there could be situations where for example the city imposes a fine on a building code type of inspection and that would not be under  penalty so to that effect i would say that because we have here authority under direct marketing that tells us that we are to take the terms under the tax injunction act the same way that we take it under the anti injunction act and because the court the supreme court in sabella yes found for purposes of the anti injunction act that the text of the statute stated penalties and it means what it says it says what it means for purposes of that even though for later for purposes of the taxing authority it found that it was a tax but for purposes of whether the suit could go forward it found that it had jurisdiction under the anti injunction act i would submit by dart is certainly not controlling here and one need not necessarily create a circuit conflict here between bardach the seven in the fifth circuit but to the effect that if the court is going to say that by card is controlling about your cases i would say that the ruling in direct marketing is absolutely clear that the tax injunction act an anti injunction act are to be read in have a plan i would say that civilian is demonstrated that a penalty one looks to the statutory text not to a rule as bedard formulated as to whether it's regulatory or not for purposes tax and injunction act so to that effect i would say it is clear but if one is going to apply bedard as the court says as you said judge breyer because you're bound by it you don't feel it's clear i think it does complicate the situation and creates a perhaps a circuit conflict with the seventh circuit and the fifth circuit as tacoma the i would say that as mcgarry is not the final word it was not briefed in the lower court as i recall it was not briefed in this court direct marketing remanded the case to the tenth circuit to brief the issue to decide the issue of comity that it referenced a subsequent case to be mar there been two cases hibbs versus when and levin versus the commerce energy inc which have talked about comity they've been different contacts it's a rather complex issue i would submit and i would say that it cannot be just decided by and if the court were to decide that any portion of this complaint is not subject to the tax injunction act but there was a question of comedy that would be brief that would be sent back remanded to the just record to decide that is in the first