case because we don't have to deal with complex statues detailed technical rules and so forth and we have a fairly simple issue as congress authorized the i r s to charge individuals who compared tax court below far otherwise the district court was wrong under the user fee statute which is all that is needed for a government office to charge a user fee is if it supplies a service or thing of value the the validity of the fee does not involve a comparison of private first as public benefits or even a formal licensing state all that's needed is what supreme court is call so congress gave treasury got authority now the district court's decision invalidating the p ten program was based on this court's loving theories and was based on the district court in separate parts of its opinion saying that while you cannot impose a p ten because it's equivalent to imposing a licensing scheme it's functionally equivalent to granting the ability to practice and the i the already preexisting licenses there are there presumably is is weaker but but but we think that the i mean that's that's a relatively a much smaller how was that giving them anything of value what value did you add to what they were doing well they actually they actually received value from from the get go it was just by rest never charge for it and now a much harder case but that's what the initial getting it was so security number for your purposes somebody already has a social security number and then they have to disclose that number when they're preparing somebody's taxes right well they actually they they cannot use that number anymore they could easily do more but i'm talking about that the regime beforehand regime would have or do is that they they would give the social security number that by hypothesis they already had right and as to that what could be the basis for the i r s exacting a fee associated with just t created the website for getting to the who give instructions for the call center on there there's a there's a declaration in the record point about how many how many i there is also oh i've got i've got a list here i can tell you they for instance if any preparer has been enjoying they have to double check that this is really very general language here on this page i would like refers to the credential preparers that the p terms are the uncredentialed preparers because of loving do not have a tax compliance check so that's part of the credential so that part of it can't be that the third party vendor also has a call center people call in if they're not if they don't get the number properly or they have a problem with the number they call in they want to find out what's going on there i arrest people that write scripts and interface between the the vendor and the i r s they have to contract for it they have to monitor the program they have to side or we could or we hired this is vendor there their h r people i r s there are there are  lots of things they do they give assistance if if there's a problem prepare a nontraditional prepare and they think that they see there's a problem they coordinate with  statute this calculation of whether you charge a fair price would be determined after exactly exactly this is how that's the purpose of the section about that makes it based on cost the more and so the figure was fifty dollars there are a lot of significant upfront startup costs and that's why loosed love me they said ok we've already incurred these costs it's not costing us fifty dollars you  everything they said they're going to do in two thousand and ten so so the fifty dollars was was based on not just the p ten program itself but also how extensive there's two different parts of it i suppose they have an argument that at least part of that in twenty one i thought that this i thought this language is actually post loving a month and that's what's confusing me because this language i think is twenty fifteen love it was twenty fourteen and i think you're right hope it has to be pretty large and that's my confusion because what's the use like you're you you would look at this language and you would think it would be pretty loving but it's not ok this is the the the tax compliance and background checks that is for credential preparers that is still done so so so i did one i don't want to have a history of saying there's still do tax compliance and background checks for all credential preparers they do not do that for one credential is justified based on the things that are itemized in this paragraph because with his bike on credentialed tax preparers some of these things just don't have any applicability but the only things that do not have x will be would be the tax compliance on the and the professional does a nation but certainly foreign preparer processing that you do that there's just some things in here that that can't justify there are there are a few things that do not apply the uncredentialed preparers communicate with tax preparers this was something the eleven circuit point of them printed that it enables i rest in issue targeted updates if this they see there's a problem with a certain preparer and it could be the preparer attributes of a system would have equally been the case with the social security number that you may have some other problems to use such a cutie number but the as long as you have an identifier of some sort including a sleazy you certainly could have done that but congress clearly didn't  it doesn't matter you know whether the ultimate purpose of a program is is to benefit the public presumably anything an agency does presumably benefits the public and seafarers also pointed out that it doesn't matter if a user fee is considered to be personally beneficial to the person who has to pay it that's not the test the test is or it isn't a den a fireball person getting a benefit that is not filing returns make money using social security number and then on this day use a different number but keep doing everything you are doing the same before is value added as opposed to simply a different identifier being employed by the i a fee for service is that it had previously provided for free so that's high risk your list i'm still not quite understanding that what the service was before because if before it was a social security number not a pita and i understand  what would what we have gone to a social security number before it would be a different question if they didn't institute the actual p ten system now there is your question is what if i rest just said you can use the security numbers because if if you didn't add any value beyond what was already there with the social security number then and there was as you say it's a harder question so there's at least a possibility that no fee could have been assessed with  of security number then it seems like the addition of the p t would have to change the calculus in some way that made the otherwise dubious assessment of the fee dubious well the the federal register with all of the preambles point out that it is and they specifically said it is beneficial to the preparer not to have a social security number because even though it's supposed to be redacted and you're supposed to not include rights and then this is the one justification that i get which is that when you move away from social security number it helps preserve the social security number and that i get there's a question as to whether that was actually ever asserted as the basis for the peter number but he abstract i can understand that but it seems to me that if we think that that justification for moving from s s number to a pita number which is that we're doing that because it protects people's social security number if that's not stated as a basis for justifying a pita number then it's hypothetical by everything they can do with the p ten they could have done with a social security number and the justification for moving to the pieta is not to protect us or security number what's left as the basis for the fee with the p ten well the the whole the whole process whereby if they do not there the ten program is also looking at what are you doing if you have bad preparers ok they have to have a you have to have that or you cannot prepare or charge for compensation our position is that's a special benefit and you can charge for it right and that are you it would be equally true of the social security number i think it would be i know that i said then then then that's a different question because i mean earlier you were saying that that would be harder question now it sounds like that's actually maybe essential to your argument i'm not saying you're wrong about that but it sounds like where we are now is that yes what the all the p t a does other than protect the social security number let's put  fee in the district court's rationale for not charging the fee is just not right there's there is no connection between loving and the district courts the only connection is a i'm standing before you like i did in loving that's only connection i see between the two it was the case that in till two thousand and ten when the i r s decided to mandate pete and said offered an optional p ten for free for people who are concerned about their their social their the city the security of their information and i think at that point to  return to protect their search there so that's an argument about there are two different ways in which the government can process things that's not up to us to decide which is the better method obviously the government finds it more helpful for other reasons they have a doesn't and just on privacy i would just note that in the room making the i r s doesn't identify anywhere on the privacy rationale as the basis for the fee if you look at the fee i don't so it seems like a different questions seems to me we have two different issues here one is whether this is a service that's being provided or a thing that's being provided and the second question is how much it's worth but the first question about whether this is a service or not a benefit that only affects some people and not others seems to me to be satisfied i just quickly mark three places where they did make the statement that judge was asking whether they may which was the protection of the confidentiality of the process of science seems obvious to me and must seem obvious twenty and it says listing the things that the use of p t i and as i got a fine number will benefit tax payers and tax return preparers comma and help maintain the confidentiality final call that most of the comments received on the notice of those will make them support a requirement to use it p ten as exclusive identifying no and those comments come from tax preparers who are worried about their returns and then contents so maybe they didn't do the best possible job but this is one of those ones that seem obvious but using another number than your so scary number for tax you know i don't see why they have to state it in any more than congress could authorize them to require a single mom correct it did matter and so and they did require a single mother and the choice about whether it's a pete ten or a small security number is really not our business here the only justification even post loving part of the justification is to protect social security numbers then would you still have an argument that they can't assess a fee at all or would your argument be about the amount  i think if the asserted special benefit in this hypothetical was helping safeguard confidential information that it was an optional system i think that that would be a special benefit wise not to be marshall says i think there has to be some sort of voluntary the statutory question that is the c for his case that that my friend pointed out which it actually lays down the framework for when he asserted justification is the ability to make a living off of a certain type of occupation and that's the asserted rationale here to the rule making it's the that that's true but i think what i would say is that at the at in two thousand and ten most people r t had a p ten and then the i r s mandated that everyone even if your heart already had a p ten in you will feat just to keep the number and so everyone already have the number and if you really want to see this look at the two thousand and fifteen rule where everyone has already been required to pay for the peterson and the i r s thinks it's a good idea to charge fifty dollars thirty three on a on it's own and seventeen to a vendor for the person to to keep the number they already have  is a permit number that doesn't change and has no eligibility criteria and i think you know i think the i r s kind of gives the game away a little bit in acknowledgment of a win win judge sort of us and read the justification for the rule for the twenty fifteen fee my friend thought that you were talking about the fee for preloading because they continuing to do charge directivity is they cannot conduct and i think that shows that they're at worst or at best been in denial about the consequences of this court's decision and loving and at worst in defiance of it i think what it shows is that there may be some parts of the fee that you should be able to get back but that's to be determined below and maybe that there are some parts of the fee that are justified and charges and i don't see any comments by you you are in fact anyone on the twenty fifteen reduction in the were there any comments found no but our our complaint is not that the i r s failed to adequately respond to a to a comment it failed to adequately respond to this court's decision in loving  didn't really take seriously the consequences i think and you know it's one thing for the agency with if it thinks it's using this number as an occupational license to start charging a fee on an annual basis to ensure continued compliance with eligibility criteria but the problem is the iris didn't have that licensing authority in the first place they do have the authority to require a single member correct they do they have the authority and it was an arbitrary and capricious leaving aside the statute district court in loving enjoying it from being in force is now you can't for the how many people you represent it's a class of seven hundred thousand ok so seven hundred thousand out of however million hundred millions of people in the united states the only ones who have to provide the pieta correct that's correct and they can obtain compensation when they prepare somebody else's return so they are completely distinguished from all the other hundred millions of americans this is a benefit that goes only to them the benefit of being able to charge more for preparing of a return and that's a benefit that they all already had but i don't understand why sure it doesn't have to be that all they have to do is have a good reason you have to have a good reason can be we weren't turning before and now we're charging because we're allowed to and that that seems to be a perfectly good reason and that congress might be quite mad at them for not protect or the safety of their information of the security of abstract there's nothing there's nothing necessarily wrong with charging for a pizza and because in that universe that would have been fine you know that an employer and then they had the distinction that we have the so the two potential distinctions that you're  two now is it's mandatory rather than voluntary and that the justification in fact at least as a stated matter formally in the twenty fifteen rule explicitly incorporate time that it created the putin requirement and created this the requirement that her parents pay an annual fee for obtaining that number and renewing it and i think that when you asserted rationale is an occupational licensing rationale that the framework is provided by this court's decision in seafarers and what the court said there is that the user fee for license applicants is only permissible if the procedures in question are related to the qualifications set forth in the licensing statute and the problem here is there is no licensing statute there are no eligibility criteria who could obtain this this so called license anymore and so you are i mean it's not much it's not like the credentialed preparers and sixty six ninety four ninety five there are actually some regulations of tax preparers yes the i r s you know them and plus now this is how you will continue to do that business but they it's not an entirely laissez faire activity  position which is six ninety four sixty six ninety five previously failed to identify seventy four zero seven and i jumped in against you these are these are all elements of your belief or practice and well i think what they could do is if they really wanted to check what they see whether i'm complying with you know their various tests or whatever it is that they do exactly i think they could potentially i trying to get compensated for preparing somebody it's returned so it may be true that anybody with a pulse can get it but it doesn't all use for anybody other than somebody who wants to be compensated i think but i think what you're pointing out is that this is really just kind of at this point a kind of zombie licensing scheme that isn't really rational and i think if anything that just i think strongly suggests that the i r s is not really engaged in reasoned decision making maybe just does not make sense in two thousand and fifteen to you know after every v's receipt by the service through the end of calendar year two thousand and twelve exceeded one hundred five million with some me only be spent on the register tax return prepared program that is the program that this court invalidated in loving i mean the fuser beauty being used entirely to support this legally required it still wouldn't be ok or even if the i r s said look it doesn't really cost fifty bucks it cost two dollars because we have to keep up the website we have to pay the webmaster we have to check is not just a you have to live or die on the argument that there is no statutory authority at all no i don't i don't think we do but let me just first predict to try to get this part of the answer to out so if you find that there's no statutory there it is obviously it doesn't matter whether the i r s tried to supplement  authority but now we're going to look to see whether the agencies justifications are reasonable in light of the scope of the agency's statutory authority i think that the two thousand and ten rule is in our view is just clearly out it's obviously motivated by a desire to implement this licensing scheme and it's a licensing fee operates like a licensing fee and there's no licensing authority but then if you look at two thousand and fifteen the first point i would make is obviously defender generally this will cannot retroactively justify fees that are imposed under a rule that rested on a faulty foundation but then again i think the two thousand and fifteen rule in the one paragraph that the judge should have us and mentioned earlier are the i r s is trying to explain all the things that it's doing this is at the twenty nine which is the addendum to our brief if you want to follow along i mean even this justification it's the second paragraph in the in the middle column the i r s can't help but refer to all these various compliance checks and other things that they're doing that have no bearing on whether somebody gets a peek and which is the sole basis for why they charge feet and so i don't i mean i think this is an agency that i mean i might have yet and the ability to collect taxes but it doesn't have the ability to create taxes in the way that this annual fee is operating right now he's as a kind of tax or an occupational license or what have you but it's just not a reasoned decision making and i think also just in a sense that the  if you really do if you look at the top paragraph here of the twenty nine the act the i r s is explaining that the amount of the user fee it's thirty three dollars where the you've got the p ten or not already whether you're renewing or whether you're applying in the first instance because the cost to the government are the same now if that's true then what the i r s is effectively saying is that the marginal cost of actually having a database generate this random number which the government doesn't even do it's a third party vendor that is affected the zero i mean it probably cost more for the agency t issue this rule than it does to issue a random id number that doesn't change and that's just not rational it's an i mean yes you could view it as a and excessiveness question but i think it's better to just say this is not there's no way you could think that and agency that is our printing under today's world of instant access to volumes of sensitive information about an individual including even credit reports successful over the internet practitioners are understandably concerned that their social security number could be the key to an authorized release of their personal financial and from practitioners feel that the requirement that they include their social security number on returns violates their privacy as it could provide a possibly unscrupulous taxpayer the opportunity to access certain records that would not otherwise be available so and it was hot so i could see this is not in the record but it is the hearing that led to that the report if they would reissue the rule and cut and paste this section of the practitioners of your concern back in one nine hundred ninety eight about the risks of their privacy with that be sufficient sustainable it wouldn't be sufficient to sustain the fuel it might be sufficient to to stay in the putin role which were not challenging but i would also point out that the previous regime before the peach and you know feet in mandatory rule was put in place was that the tax return for fair had the option you could put your social security number on the form or if you were really concerned about confidentiality and other things you could apply for for a pete in from the i r s and they would help you safeguard the confidentiality of your own information and i think i mean if that is so  concern is just effectuating congress and congress is purpose there was no reason for the iris to move away from that regime it already so a bit but you just do a distinction between the over the underlying requirement to feel part of it if it was voluntary you'd have no problem with the  understand some people might actually not care about privacy that answer security number but that this is a society wide systemic problem we're just talking a lot of risk to present because it causes too many collateral consequences so everybody's going to have to have a  mandate the pekin requirement in that case they would absolutely would have that authority and then as to whether they would have the authority to charge a fee if the asserted special benefit is not a licensing benefit which is what the sort of special benefit is here but you know we're helping you protect  your your information then i think that would probably qualify you have a difficult question about this you know is it voluntary is it not given that the agency has no other real regulatory authority i mean it might be that under one time fee the justification better be pretty good irish better say why it thinks this makes good sense but i think if it were a one time fee and certain special benefit were different then we had a different very different case than we have here i think that would be a much stronger case for the s to be able to sustain that the but it just we are miles away from that here and in this isn't the i r s is charging a massive and you will feed a people who r t have that the number that doesn't change and that just makes no sense given that there are no eligibility criteria agency i mean i think that that statute exists where if you've got a problem with your return or you have some you know you should go first to the agency before i finally some alleged to have been excessive that was collected by the i r s so it's not just  taxpayers well i mean if the court is concerned about that would be happy to file twenty a day or supplemental brief or something but i just don't think that that type of exhaustion requirement would apply here and had been addressed by the parties or below i think is have playing under and he theory to do this and so we are challenging that rule and we're not i mean it is true that the consequence of challenging that rule is that any fees that were collected based on that rule would be return had originally raised jurisdiction and then it seems a falling out so i just might and i wrong to think that the reason i see this is this is not a refund of tax so the normal tax rules about claim for refunds and all that do not apply to the