on thank you this morning they cannot your honor i'm talking about the department of ministry of hearing it the department of the ministry of hearings limits its jurisdiction it cannot consider facial constitutional challenges and we are raising a facial constitutional challenge based on the plain language of the ordinances here the city's ordinance that imposes this telecommunications tax says the city can impose a tax on any entity that has a presence anywhere in the state only telecommunications excise tax that tax has a definition of telecommunications that is identical to the city's ordinances definition of telecommunications went through that audit there was a determination reached that that there was no tax due within sixty days after that we got a notice from the city with an intern notice of intent on it very burdensome audit questionnaire you know i include ing you know any company you've owned in the burdensome both companies stop and strongly that the city did not have jurisdiction to audit or assess tax against them we met with the city we met with the city and expressed those points of view the city asked us to send them up a written memorandum about that we did that detailed memorandum and then we waited for you know seven months and we got no response whatsoever from the city until i december of the year i when the city called and said we agreed to extend the limitations period so that we can continue to i  themselves which asserts that the tax can be applied to anybody with any presence within the state i think there are other broader paragraphs within our complaint that talk about the  apparent for three reasons our first of all if you look at the basis for the circuit courts reasoning the circuit court does talk about the exhaustion of remedies issues that were briefed by the parties that bit of the rule on that basis what sign is the notion that these plaintiffs could have come to the circa court under the i protest moneys act and they could have gotten all the relief that they're now that they're seeking before the circuit court if they'd only paid their tax under protest and proceeded money sack that was your you can only pay a tax under protest and proceed in circuit court in that manner i if you are protesting a tax it's being imposed by an agency of the state this with these were taxes that were being imposed by the city of chicago read that is correct your honor however the court was also wrong with respect to the other bases and that the city is razor that i think could be raised here and that is that the exhaustion of remedies doctrine applies here and why doesn't it apply doesn't apply for two reasons first we've already talked about and that is the reason why we're not precluded in this instance and why we should be deemed to have proceeded before administrative review is that we couldn't obtain that facial constitutional relief and in fact we couldn't get it jurisdictional ruling the heart of the matter is here shouldn't you have the right to get your jurisdiction established before you have to proceed on the merits if there is to proceed in administrative hearings these palance have to proceed on the merits of their claim in iraq prevail on that but the court creating such i will say to honor their theory there are many many many statues and ordinances that's where the taxing authority says we're not doing anything on constitutional and if that were a basis to shut down a constitutional argument no seek review with for the department of ministry or i'm told to do that compelled to do that there is no effort and no evidence in the record of any attempt by this taxpayer to proceed on to two fronts we never have proceeded on the merits before the department of administrative hearing when we appealed to this court again we found a motion for stay that motion was granted so there's never been any effort to proceed on two fronts and that's primary administrative hearings to simply state the action if you look at the pleadings for that scene is just a number of states that they are deprived of an adequate remedy of long because they cannot challenge cannot bring a facial challenge to the statute in other words they have to proceed on the merits before the jurisdiction is established that's backwards here that's backwards and any type of legal proceeding of the jurisdictional shot to be resolved first just like your honour's have the right to raise jurisdiction at any time in a proceeding even to present raising it in a proceeding before you you know second have we demonstrated a likelihood of success on the merits we believe the answer to that is clearly yes first there is a challenge to nexus under both the due process and commerce clause this of the united states constitution the city has asserted that that nexus is not a you can see that for example it for eighty eight us to sixty seven is a pinpoint cite that's clear we're also alleging that the city is taxing extraterritorial here in violation of its own rule of forty this is a situation  the herd's case where the city said to rental car agencies that were based outside the limits of the city of chicago that they had an obligation to collect and remit the city's personal property lease tax similarly here w i i think the nine one one service is important to some people that use these devices they have the choice whether or not they want to sign up for not my service if you can if you believe that they do have that choice and they can elect whether or not to but we're not talking about that portion of the transaction what we're talking about is what the services are that are provided by y m c c it's not even selling the device that's in question here all it is is an entity that when cars when a user chooses to place a car which can be made anywhere in the country or even around the world they verify a phone number and then they send that verification on to the internet service provider the internet service provider that makes the call and the users build by their internet service provider for making that so it's quite divorced and the city makes a point about two tracks here one is that they that this why m c c dead and twenty thirteen decided to collect and remit that that surcharge and the city's claim appears to be that because they decided to do it then they should somehow have liability as me for the previous op previous six years but of course there's no admission there a taxpayer can for a variety of reasons decide to collect in her mid a tax on going forward basis you see that burden recognized in a number of court decisions you see that recognized in the two united states supreme court cases he cited to cashel dallas has and the quill case but you also see it in that and out on my supreme court and it you know i'm a strange extraterritorial exercise of the powers of taxation and zoning and in other areas could create serious problems as each member or unit in illinois could exercise such powers think what's important to recognize here is that a palace that work in that telecommunications space are subject to thousands of taxing jurisdictions all across the united states not just the fifty states that are going to disappear it's one of the most heavily taxed areas of commerce in this nation right now and the gooden of allowing all these energies even every municipality in illinois to have the right to initiate an odd it and assess tax merely because you have some presence outside of please the court whatever the merits of the plaintiff's company's objections to the taxes that have been assessed in this case the appropriate venue for raising those objections and for those objections to be resolved is a department of administrative hearings where the plaintiffs filed protest to the tax is assessed against them let me be clear this is not a facial challenge to the constitutionality of the telecommunications ordinance there's no plausible claim that the ordinance on its face is unconstitutional in any application the telecom tax issue here imposes taxes on originating or receiving interest rate calls in the city of chicago in other words the tax or transaction is the subscribers use of the service in as just a slot and was pointing out the they say you so you know that's that's the value to the customers of the companies this is their ability to use the service to make to make phone calls now the specifics of you know whether there are customers who are using it in the city out whether people have billing address is there you know those are all fa you know not being physically in the state or in the city conducting business you know what's important to the applicability the telecom tax is you know the use of services there we know that the plaintiffs have agreements wit the application of the taxes against them which is really a concession that it's an as applied challenge me calling it a facial challenge doesn't make it a challenge and the complaint itself which just house was asking about what you know what they asked for they asked for a declaration that the department lacks the authority under the and the constitution of the united states constitution to audit plaintiffs and there's nothing on the face of the ordinance that says wage so there's that and you know the argument that council and made before it was that that didn't matter because that was essentially futile because the deal which couldn't were unconstitutional exceptions i think a cultural lands not subject to the zoning was it was obviously agricultural land in the morning part case it was purchased or property there was no question that the property was exempt the question was whether the interest that the plaintiffs there had in that the taxpayer had not allowed to proceed before the board of review here the questions about whether this it's not public characterized as it as an assertion that the tax isn't authorized by up i don't have any particular case of speaking the hairs i needed but it is a distinction between the nots case and the money in park and i think particularly important millennium part was that it was the court could tell from you know looking at what it had before it that you can look at the contract and figure out no this is a license and not a lease and on that basis the property is not subject to tax here there's nothing that this court can look at on this record and about the applicability of these of these taxes and so you certainly can't say on this record that this tax isn't authorized by law and it's again very fact append should proceed before  you know the substantial nexus that's required under both the commerce clause and due process doesn't depend on physical presence but you know it depends on its subscribers use of the services within the jurisdiction there are also protections any double taxation this you know particular ordinance allows a creditor set off a tax has been paid on the same transaction elsewhere and you know the objections to requests for information in this the page site is c five three seven i pads as for not having the exact paragraph of our complaint but that's our record cite for authority that's in our brief so if you're making an allegation that a city is without authority to tax that is a facial challenge and jurisdiction here is a question of law which makes it a facial challenge the city is arguing that there are many questions of facts and if we were looking at this tax and its application on the merit affect issues but with respect to the jurisdictional question that's what we're seeking that right to raise before the circuit court that is a question of law and that is resolved by looking at the language of the city ordinances comparing that to the