law that the timeshare tax does not want to waive the commerce clause based on either effect or intent let's let's start as we should with the text of the legislation itself structure not facially neutral yes the time here tax as drafted does not on its face in the case discrimination and there were it is facially neutral our position is that in effect in intent it is discriminatory and as your honour's are well aware of the supreme court has were decades found that when a statute says is not what a statute does in terms of a fact an intense appeal is about that fact that intent of the statute not so much what the statue actually says on its face we've now you're for your friend across the aisle there virtually on page eleven of its brief said we could find no case in validating a tourism tax as imprint in permissibly discriminatory under the commerce clause and they point out that if the opposite were true also just taxes hotel occupancy taxes rental car taxes airport taxes etc would be unconstitutional do you have any cases that that would refute that that statement well there are no as far as we know any any cases of voting at times your tax there are a more fundamental basic cases that say whatever the context that if a a statute is passed that is neutral and does not have the effect of the screen against nonresidents then it is constitutional so there are many many and that's the basis of our over position the standard ever used for this court is plenary but most importantly we think that the standard of review for these kinds of acts is discriminatory these penances is very high the supreme court asserting the fleet order that it requires careful scrutiny the court also said in the chemical waste case the supreme court that are typically struck down without further will how this tax does or does not meet the complete test and before you get to that i should have mentioned this at the outset of your of the plaintiff appellants we're representing the individual as well as the association yes right that the reason i asked that is because i seem to recall you can correct me if i'm wrong that there was of a variance in the approach of the two appellants in attacking the tax with respect to the four components if you will of the complete auto test i believe if you had challenged not specifically number three the discriminatory aspect the other three portions of that test had been attacked by the other  right i may be i may be incorrect in my memory or that may be a shifted in approach but if you would then indicate how number three is violated here let me start with the issue of fact and you know the supreme court i guess the best case on this issue would be maryland versus louisiana in any one case where the supreme court instead it's the effect of the statute that has to be examined carefully not just the statute actually says and therefore the practical application of the statute put into place as the as the court says the court is not bound by the name description or terrorization of the legislation it looks at the practical impact of war in this particular case we have a near proxy that this statute is aimed that nonresidents ninety nine percent of the time shares are oh my nonresidents well now that the land your choice of the word game that suggests intent as opposed to effect yes that is the other argument we're making that has both effect and intent in this case and that's that is much different than other cases about that so this record which is undisputed about intent is probably much better than most of the cases that are cited not brief where that intent was not part of the record this is not except that the governor simply aren't so they eat the target those discriminated against are people right not a particular form of commerce but but people not a particular market but people is that with timeshares wasn't wasn't there originally a privileges and immunities clause challenge in this case there was why did you drop it why did you not pursue it on appeal  is the effect is not relevant to the court's inquiry for commerce clause purposes that was a finding of the district court that is wrong as a matter of law with the district court and basically saying and what i think my opponents saying is that if the statute on  face doesn't show discrimination it's not discriminatory in that it's just contrary supreme court precedent that effect has to be considered by the court when there's evidence of a fact that was evidence of intent that's another issue we think in this case there is clear evidence of both in the record undisputed and the other point we would like to make it is what why is this so important that's aimed at not residents and why is that discrimination a problem it's a problem for this reason virgin islands like many you know resorts cation are going to rent timeshares they can also rent apartments and condos and private houses like we do down the shore in new jersey another place those entities compete against time shares those entities are owned in part by residents of the island so this statute as passes taxes passed as a competitive impact  us making them really i'm competitive by raising the price per week one hundred and seventy five dollars a week the twenty five dollars a day contract tax that rinsing that has a constitutional dimension to it are you just telling us a exactly counsel is i recall and you can correct me if i'm wrong but i think this is brought up st time in your reply brief the proper is this argument about the difference between owners of condos and apartments and that something has been judgment the reason that it's mostly in your reply brief is because you pele in their response would be raised this protectionism argument and said that the stand she was not to is not protecting residents that's the argument they're making record to the contrary there are the supreme court said there's no discrimination because it's a police applied to the residence and on residents now as i said one of the facts is that ninety percent of the coal went to out of  and so it may have had an outside effect on outsized effect on outsiders how is that not like this case i think the montana case would be like this case if you have your hypothetical situation fact and lights intent is here the pacs have been applied to but not a one time share owners but also condo owners apartment owners other rental properties and their plight across the board like you did in the editing because one rd of the panel is from coal country by children it's actually around here but judge brady's point is well taken counsel a question on  the on the court's jurisdiction and to prevent chill principle of extension in the tax comedy doctrine why why should we consider this case at all given that this is largely a commercial matter there's no fundamental  right issue it's largely about the competitive play between participants in the rental market and there is an adequate procedural remedy in the territory so why why should this court become involved well starting with your last wasn't for us to raise because we won that issue in the district court so that's why it should be there as far as comedy guns commonly only applies to the states it's a federalist federalism issue roger owns is non state the we're continuing to have some difficulty we hear you but and you're no longer muted but it least to my ear it's darn close to it  commercial interest in relation to an out of state commercial interests that competes in the same hark that's from norfolk southern it could have been from any of a dozen supreme court cases it's absolutely clear that a mere differential impact on the state  interest is not sufficient you have to show that there is an advantage either in purpose or effect to local commercial interests and the plaintiffs simply haven't shown you're the st time they've tried to really even argument is wrong the record shows quite plainly that time surely rents are treated exactly the same as condos and you have to understand we didn't get into this in our brief because it wasn't raised near hers but you have to understand how on that issue your honor this is something that has been coming up in the courts for forty years starting with the pan am case many many years ago and the essence of the argument at this point which we produced before is th that the federal court in the jurors in the in the virgin islands and unusual jurisdiction it did not have article three jurisdictions had a combination of article three jurisdiction and local you can hear local cases  aside the putting aside the rationale you're operating in a and i certainly follow it how do you address that language you are as you as you probably have encountered in various version and cases over the years the us code including title  ver time how many principles do apply in some measure to territories perhaps not to the same extent but but increasingly so because of congress is clear intent to allow them to govern themselves so i think notwithstanding the fact that the constitutional stance of the territory is conceivably somewhat different from that state substance of the way the territory is currently treated by congress due respect to my opponent a new standard being proposed here which i think was lurking in their briefs that somehow there is a standard of a balancing test that needs to be applied using kind of a pipe or a way  court i think in the supplemental authority letter that pelley submitted to the square they raised that when we're talking about the reef go decision on the panel on right that was just i don't recall even seeing in the table of us electronically in this fashion and i look forward to the day when the court can see all of you face to face in a real courtroom thank you very much we will take the case under