the government has declared war on drugs and this is one of the main battlefields as the court has probably seen there are a number of some of that actions pending a lower court this is one that has made it up to the appellate level the justice the wealth the tax power is brought and it's clear that illegal income can be taxed the supreme court has recognized that there's are in a relationship between the tax power and the other constitutional commands and because of that in a relationship the court has to be wary of the department of justice iris from seeking what is an information of an area that's permeated the criminal statutes against those inherently suspect criminal activity in their audit in their audit subs process are you suggesting that tax powers the courts have given a very relaxed standard to fourth and fifth amendment privilege and with fourth and fifth minute privileges being relaxed they can get the information and of course have you know unlawful drug trafficking for example that's something that is adopted by congress and sent to enforcement through article two the executive power with the full panoply of fourth and fifth me obtain information that can then be shared with department of justice or other law enforcement and can be used in a subsequent criminal prosecution perhaps i missed something but you have not made  this ability to investigate this area and we think it's necessary to look at these issues are our argument has been that congress is not delegate this a this this is true and this is the balancing that we're discussing yes the tax our allows them to collect and then force taxes but the problem lies is when they try to get into an area that is permeated with  the deduction in order to and is there any other entity that can enforce to eighty this is the question here is that while low does the department of justice i just asked you whether the only entity that can operate under two eighty easy are at what is the department of justice have to do with this if the function that is being taken place here to determine whether to disallow deduction because the underlying prerequisite for the application to a t is for determination act the wagers waiters excise tax act and also the firearm for it straight in the act all had the same purpose it was to collect revenue but it was the the problem is is that when incriminating evidence can be shared with law enforcement that's the problem what is happening to a tee is that there is nothing no protections in section to eat i don't like what congress did with the marijuana tax act which ended up turning into the controlled substances act under like the wagers excise tax act which was substantially modified to provide the constitutional protections to a t eat does not have the show protections so there's only two ways that this can be construed is authorities on costs to show which is not what we're here today to say or that the congress did not delegate the authority a like a criminal conviction of unlawful drug trafficking then at that point the iris just like it did in the past there takes a conviction and says oh ok taxpayer you did unlawful drug trafficking category and this is the important thing and this is where there was a shapiro case that they discussed and in those five security cases you know united states supreme court and if it's in the regulatory world what you're saying in green is exactly right it's when used get into an area like i say permeated with herman statutes that we start having to look at the cost to fill balance what is the constitutional balance and what that how that's i'm having trouble figuring out why that isn't a constitutional claim well because there are the primary thing under to a t is colleagues from the department of justice on behalf of united states the issue of this case is simply whether three summons is that the iris issue to investigate the tax liabilities of a corporation called high desert relief should be enforced the district court judges or neal and judge johnson concluded the should and we submit the that conclusion is correct what the case is not about is the allowance of any specific deductions or the actual determination of tax liability because we're just at the investigation the audit phase there hasn't been a determination of high desert tax liability if there is they would have the opportunity to challenge that in sas court or district court or the court of federal to some of those or to banks one is to a utility company they have brought into the case in the reply brief and then in the twenty eight j letter the leary case and then the march of the case in a couple of companion cases which really have no application here the principle in those cases was that someone was being asked in a tax statute to make a declaration about engaging in an activity that would end up subjecting them to prosecution here or high desert is not being asked to give any information iressa simply trying to gather information from banks and it's really information about what their gross receipts would be the information that they're presumably most concerned about would be the information from the new but again the request is not asking high desert to incriminate itself it's a request to the utility company so there's not a fifth amendment implication to that let me ask you a big basic question related to and a review you relied on our villa real case our response to that is first of all we don't think that there is a general dead letter rule certainly not one that applies in the context of section to a t v there is a kind of dead letter rule that was qualified that was codified in section one sixty two th doctrine really doesn't have any application to a t secondly it really seems premature to say that marijuana enforcement is a dead letter the case that taxpayers rely on for that proposition involve a state liquor law that apparently has not been enforced in many many years in there was testimony to the effect that it was really regarded by people in the state agency as just something absolutely that's technically on the books but they don't look at it i think anybody aware of what's going on in the news in the past twenty years would have to say that marijuana is a contentious subject different states have gone in different directions and it would be really premature to say that there has been a final consensus that marijuana is not going to be enforced and of course we did submit the current attorney general most recently which withdrew the two deputy attorney general memoranda that had been issued some years prior that doesn't mean that we're about to enforce against high desert relief but it simply to legalize the use of marijuana for medical purpose of or for recreational use such as oregon washington honestly i'm not really prepared to answer that and from the  do absolutely no work with the strong force men or with criminal law in general so from a tax set point of policies to proceed to collect all taxes in effect all  what what significance should we tied to the fact that that that in fact those other memos were in place for a while during the period from which you seek to determine whether there were attacks there are  is something that's really dead this was sort of a sleeping letter so to speak if even that but it certainly has been revising the to justice it was really never dead because it's always been sort of in the forefront of policy discussions and i think anybody would have had to contemplate as this i think the premise of our human is that even during the period of those memos there was never any action by the i r s to back off the collection of taxes or the enforcement section to a t as the court pointed out in the feinberg decision so whatever th court has to answer but we have the werbach reform and that is different as part of justice from from attacking the medical marijuana the basic question and i don't think that there's any precedent one way or the other but if it is that the industry marijuana industry is not subject to the journal revenue code provisions or collection of taxes that in all appropriate procedural means question i think just discourse which did make a comment that this this might not be the case this is this is an area unlike any area that has we've ever seen in the history of this country and