good morning please the court might have as robert bremen for the united states crowds leaving there's not usually a crowd for the tax case sometimes it's crowded i'm not sure i have a great deal to add to my to my legal remedy is necessarily an adequate legal remedy even if the diff defendant is judgment proof or my point that the district court misapprehended this court's decision in rosen to reach  contrary conclusion help me with the profiteering question that we asked you to brief and that was jurisdictional let's just assume for the purposes of my question that whatever else this proposed injunction was it wasn't to enforce the law injunction obey the law it went beyond it was more particular in detail let's just accept that so this has the case become moot in the sense that the business to ensure that a party doesn't invade court's power by making a loud i tell you the reason i and there are a lot of ways to get out that but i'm not sure this particular injunction is the most that the keisha's way as it was drafted so help me with this for for a a minute each of the first five injunction there were seven and all as i read the seven paragraphs each of the first five say to this business enterprise prospect of lee we are here in after ordering you to do certain things all of which bear upon making sure that the fica taxes are with help so we're saying one we want to make sure that you segregate the money he put in a separate account for employment taxes of employees we want you to pay over to the i r s all income in fica taxes withheld from the employees and so on and so forth that it's a prospect of in nature but if the business entity is no longer in business doesn't employ any body and post spectacle he has no obligation to pay any payroll tax pro specked of lee because there's nobody about which the prospect would arise where would there be jurisdiction which is not to say you couldn't hold them accountable for their failure to pay in the past and it's not to say that if two off the pigs surgeons turned around and created a new company and hired new employees you might not be able to seek some injunctive relief prospect of lee about them under a new business form but i'm not sure how if the business is really gone with the w it's over it's not in chapter eleven it's not in bankruptcy there's been no stay it's just gone how you can see how the thing would not move in the so far as the legal action you're asking for to redress the harm wouldn't redress the harm prospect of late you're worried that in the future they're going to do a b c in the again because under this corporate form they did it in the past that's i understand the heart of the concern but i don't see how you could enjoy and i don't mean individually now i mean as a business or a corporate enterprise but i don't know come in it's not hard to it's not hard to find evidence it's just that as an appellate court we're not fact finders why shouldn't i remanded to the district court and say you tell us whether the case has been rendered moot at least as to the for a business like this to say well we're just going to walk away from our half million dollar employment tax liability and start up the same business at the injunction as to the individuals appear in power grab six and seven and they're all you're asking is that roland ask ins the third and philip ask ins notify the i r s of any new company a business that's not mowed that's easy yes that's certainly not a obey the injunction for me that's easy to but i'm not asking about clauses six and seven i'm just asking about the first five that it would be a simple matter for ask and miller to reactivate it this during the district court proceedings and they'd said we won't use that business anymore we'll start a new business case is moot wouldn't it wouldn't have been moved then any more than it is now with this injunction get after let's say that they started a new business called specify whatever business they are using what you may the question though is not whether you may the question is what you would be obliged to do if you want to get at the new entity of course we couldn't get at the new entity with an old and with the injunction as it's framed now could you  if you didn't change the injunction modify it and add the new name could you enforce this against the new entity well it would be much harder to hold these individual on contempt if they were why would it be harder because they would say there there is no employment tax liability for ask and miller that's right also if they did a new name you're going to argue well that's just getting around josh and we've gotten that you that ask and miller can't do so if you have an injunction against ask a mill are that's the current and today that they have been using if they pick up a new name you can say that's  in effect this same thing judge wright we were just under no name it's a sham it's all the same thing obviously to deal with a situation like this we have to invest resources in following these people and we would have to continue to do so in the district court no matter how they i'm curious i'm curious about one other thing here while the injunctive issue was going forward sought damages and indeed you got a judgment in a civil case in the amount of two hundred seventy two thousand one hundred thirty three dollars might be a quibble i would say to damages it's that's the amount of their tax you've got a judgment yes and so i'm saying yes but what's interesting about the judgment is that it was entered in favor of the united states against and only against miller orthopedics b a not against the individuals i was sort of curious about that it's obviously individuals you're after i could address that it's obviously it's a corporate liability so that's employment tax liability of the corporation so the individuals don't have any liability so they make the those employees whole we're never going to hold the way it works is if if an employer withholds employees we have to give the employees credit for the taxes  otherwise the whole system will fall apart when a corporation fails to pay these taxes the i r s can assess a penalty against the corporation's decision makers those people with authority to decide which creditors to pay knew that the taxes were not being paid his can assess a penalty for the amount that was withheld and not paid over and the i r s has made those penalties against the individuals but still can't collect those either because there is no money in their let me address first the court's concern about newton this i filed a statement with the court and i determined that representations i made in there were in error i think i represented that since june of last year two thousand and eighteen that ask ins and miller had collected and paid over they were essentially out of business at that point are they out of business is the case mood or this is entities gone with the wind gone with the wind yes or no and in fact i think there's there's other state judgments against it as well what is it that makes you qualified that as a practical matter rather than just a simple yes or no well because of the fact that an injunction against an it is not functioning i view that as a practical matter that has no force or effect it's it's blowing in the wind is all it is does not does that corporation exist at all it continues to exist yes this having assets now well i don't has it been dissolved you know it hasn't been formulated all but we don't know any of this is just you telling me without anything in the there's there's there's no factual record here and why then is it not the appropriate remedy for this court to remand to the district court to tell us to find as a matter of fact whether it's as a practical matter gone with the wind but as a legal matter it still exists or it's really moot because the injunction is purely prospect of it's designed to get the entity in the future to then that's the end of that we don't go to the merits direct route let me ask the question in a slightly different way the district court among other things if i have it right said that these were obey the law injunctions and therefore were on an forcible and that was one of the reasons why i rejected the application by the united states right yes you know why are these obey the law injunctions seems to me to be so far beyond what the law says here is what the i r s says you've got to pay your payroll taxes that's not what this order says this order is premised on the on the assumption that you're not doing what you are obliged to do and therefore do if the fact that you comply pro spec to believe we're going to require you to segregate employment taxes of employees and on a similar semi weekly schedule deposit them in an appropriate the federal bank and so on and so forth those are very particular and specific obligations that this proposed injunction would ask you to do why would that only be in a obey the law injunction is your honor all those elements or elements that are created out of thin air by the i r s in this case if you look at the statute they're relying on twenty six u s c seventy four zero two that's purely a jurisdictional statute and injunctions is only one mention of that statute there's all kinds of remedies says that the district court has jurisdiction but it doesn't say that i r s injunction i r s has special powers to creative joe you may be right that there's something else wrong with the proposed injunction but what the district court said was the problem with this injunction was that it amounted to no more than obey the law and it seems to me this goes far beyond paying your payroll taxes and says here's how we're going to make you do it exactly this has this has much more specificity than some of the other cases where the court dismissed it as the bay of the law injunctions this is in a bay the law injunction but it tells you precisely how  which in my view is even worse because seventy four o two just provides the district court to hear cases it doesn't say that you've got the power to do whatever you feel bass to enforce the internal revenue laws are better or worse it is different than the law right better better or worse or neither or both it's not exactly the law i think it sounds like the contention you're making as this goes further than the law rather than this just tells them to  law well it tells them to obey the law in this sense as prospective but it does go it does go certainly for the that because it provides much more detail and much more additional requirements than the law that the congress passes provides for and that's why when you look back at that the history of seventy four o two in junctions have not been used as an i r s collection device in this case the s is attempting to use an injunction as a collection device and they have many other remedies far more remedies in fact then well i think this is a fraud case where there fraudulently not doing it's not just a tax this case and there would have been a criminal prosecution against it but i'm not talking that what could have been i'm from what this civil case is they were alleging they were knowingly and intentionally not paying their taxes and taken money out of people's checks and not turning that other people's money into the i r s that's the allegation is correct the allegation i think was that they had payroll tax obligations that they didn't meet i don't think that there was any fraud allegation in here let me ask you this is his role on ask the third a doctor yes he says he is he practiced medicine today yes is philip ask and a doctor he  a he's a c p a and is he working with ms to ask the doctor ask and still yes they're brothers ok and so they have some business was the name of the business i'm just curious i believe but when you look at the essence of what the the i r s is is was seeking in this injunction they're saying that any taxpayer that we find that has any past and it's hard to define exactly what it would take any past failure to comply with the internal revenue code we're entitled to go into the district court and we're entitled to seek an injunction against them and we're trying to entitle to impose all kinds of specific requirements that aren't set forth anywhere in the code or the federal statutes if they want to continue to conduct their business moreover if they're individuals they have to report to us before they get balled in a new business and i submit that that is way beyond what the i r s code provides that the district court should do and district courts then will be in the position of being white matrimonial courts that judge marcus was referring to earlier where you don't pay your child support ok well you got to find out that you have the means to do it for to the money somewhere else and so district courts are  but this is a new remedy you won't if you look back the i r s is not using this is a collection vehicle and basically what they admit in their brief is the essence we've had difficulty collecting taxes we've tried all these things and i hadn't succeeded so now we're entitled to an injunction i submit that that is not an extraordinary occurrence it could happen every thing as kinda miller did not make any federal tax deposit at all since july two thousand and fifteen so you said they started the new business for us three years they did not make a single that's what the complaint says federal tax deposit on payroll taxes instead they kept the money so why would that be a basis to come in and say it may not be the right entity right now that you have got to report and you've got a set up  says because they're collecting their revenue they're playing them probably to pay your taxes after three years of not i don't know whether that's true or not but one disputed below they haven't paid one federal tax deposit since july twenty fifteen was that contested you know i've i frankly don't recall but know that there they followed all the returns but they did not make a number of deposits and you may be correct in two thousand and fifteen my response would be how much three and actually go back and cite from ten to fifteen they failed to make twelve of the twenty three deposits even since ten to fifteen so this isn't going on like fifteen years now eight years right and that practice of medicine and that have employees but they're not making the federal tax deposits even though they take it out of the all their assets take their instruments take their examination tables and so forth effort to collect the tax the i r s didn't do that instead they went to the district court in this case and sought an injunction isn't into round government would be surprised if exam tables could really cover the tax liabilities of allegedly by your clients maybe maybe that would have been sufficient well again then we come back to the to the crux question is the district court in tightly determining whether there's an adequate remedy larn not should the district court determine whether any judgment is collectable or not and i submit no the district court shouldn't look at that question because again is this court said in the in the rosen case and again that was slightly different circumstances that was a perspective and judgment to freeze assets and they said no you can't freeze assets in order to make sure that your judgment is collectable i submit though that the end result is exactly the same well this complaint says a paragraph twenty other remedies have similar i fail the i r s has ripley repeatedly issued a notice of intent to levy and has engaged in levy actions but the actions have produced some success but not enough to pay all the liabilities so they have tried to levy on something right they have your honor ok but again i submit that just because you haven't failed to satisfy a hundred percent of the taxes you claim or do is not a basis for going to the district court and seek an injunction but you say you say here that what this is about is collection but isn't the injunction by definition and in fact by its words purely prospect of in nature that's not a matter of collecting from the past taxes due and owing that's a means of saying in the future because we don't trust you we're going to tie your hands and pound your feet to proceed in a certain way to ensure that you make good on your payroll obligation so it's not a matter of collection at least in so far as the injunctive relief they are seeking and that's what's before us right right but again the question is can you use the district courts injunctive powers and ultimately power of contempt which is what they're seeking here when on a mere allegation that the all the other parent play a broom and he set the congress gave the s to collect have failed to result in collection of all the tax they climb is due that's the question got it thank you very much thank you to three quick points with the time i have left in addition to your questions i started out by saying i didn't have a whole lot to add to my principal argument but i did want to add a note of outrage this is a been a brazen effort to siphon off these withholdings there's no dispute about the amount of the liability it's all based on the returns they filed they just didn't include a check it continued for eight years it continued even after they were hailed in the federal court by us even during the pendency of proceedings district court they were still not paying over the holdings if i don't know if  my argument means that iris could get an injunction against any deficient taxpayer any time but if we can't get an injunction against these guys then we will have lost a valuable tool that we used to provide a little additional but you could only get an injunction against these guys if by these guys you mean the corporate entity if the corporate entity is still alive and if it's not then it's moot it's just not justiciable you would agree with that yes yes and you would also agree would you not that we really can't tell based on what's said here whether it's justiciable or not because we don't know if it's still in the vernacular still alive so i guess what i'm asking you is what but why isn't the wisest course for us simply to remand to the district court to have the district court determine whether it's become it being the application for an injunction or at least the first five provisions relating to this corporate entity if it's moot you might be at that doesn't say it's certainly not moved us to ask ns the third and philip ask ins and you saw it injunctive relief as to that and it certainly isn't an enforced the law injunction as to them but i'm just asking with respect to the corporate entity and then turn around and proceed against the new entity if you deem it appropriate we might ask on remand we might ask to bring the new entity into the suit if indeed the old entity was gone yet and then by the time we get up on appeal on the injunction they've stopped that in a t and then they operating on her new you know it's a never ending cycle yes so that's why you say voluntary association they've jumped over a new time very because by the time we get there we're going to have to have moved on i mean i don't know whether that's a good argument but that's the argument you make as to decision which just referred to we have a lot of volunt city says ok we won't do that anymore and then a year later they're doing it and it isn't a problem there when we use those voluntary secession case we're talking about cities they continue to operate if you have a corporation that's the front and the injunctive relief is prospect if to say in so far as you employ people make sure you pay rip your payroll taxes and here's how we're going to insure you do it but they don't exist they don't have any employees they don't have any future obligation they have passed obligations that they may not have met simple matter for an escort to transfer its business to a new name i don't know if they're in the change what could you ask what could you see if a corporation is in contempt of court we can't work we do about it we can't have that right but when you do want to ask you about the individual and ended in a civil monetary sanction against a corporation that already has stolen well well misappropriated half a million dollars of tax liability that kind of contempt so i'm just asking what can you do against the individuals we could convince the district court that they should be incarcerated as a civil contempt sanction if they are continuing to misappropriate the the withheld taxes do you think of this current injunction with respect to individuals would make them li that way for taxes by any future businesses probably it would have to be modified and made more clear more detail yes i can answer just one last question i heard my point and say why didn't you shut us down and this question about whether the tables could be sold something i brought out just in response to the court's order of a couple weeks ago the revenue officer secured a financial statement from the business and two thousand and fifteen asking what it had the could be seized at which time it said it had no real property no business equipment no investments or notes receivable all it had was an old car so that's all right thank you very much thank you thank you for your efforts and we'll proceed to the third and last of the cases