there be an adequate opportunity afforded for a post deprivation judicial review of the legal rights of the plaintiff and that's from phillips the commissioner at both five ninety five and five ninety seven when the government issues in assessable penalty the u s tax court does not have jurisdiction to hear a challenge to that penalty the only court that can hear a challenge to an assessable penalty such as the one in this case is the u the target of that penalty can't challenge it by declaratory judgment action it can't seek to enjoin it the only mechanisms for review of that assess will penalty are a refund action under thirteen forty six or an action under the know the floor opinions are clear and they're there what would you have us do in the in the face of you know precedents that the you know the country and the x community to live with for generations certainly your honor the florida case did not reach the question presented here what was at issue in the court in florida was whether a tax that could have been brought a challenge to  could have been brought to the tax work because a deficiency notice had been issued which gave the texas orders titian whether that challenge should instead be brought in district court by means of a partial payment and sued for a refund they didn't reach the question presented here and you see that when you look at the dissent in lang which discusses this exact scenario now there it's under a jeopardy assessment question but the dissent in laying talks about the fact that where you don't have the ability to go to tax court you can't apply the for a full payment role and it's consistent with what the second circuit footnote six in irving to greg said as well that you can't apply that full payment week we with you what is what is the mechanism i mean are we saying that that flora it's distinguishable and then we can write on clean slate i think you i think this court could say first of all that for didn't reach to the question presented here the full payment rule in florida was confined to the class of cases which is the vast majority of cases of course that can be litigated in tax for this narrow range of cases that present assessable penalties that cannot go to  is a different set of cases and flora doesn't apply to them and therefore it's not in contravention of i was the given but i mean do we go back to the statute and interpret the words of the statute and you would argue which we should come to the conclusion that it doesn't apply that that that the full payment rule doesn't apply here because of the wording of the statute or think or walk i think it's a combination of two things  the statute draws a clear distinction between assessment of taxes which has an alternate moment into tax or without payment were collected whereas with penalties as collected the statute seems to is cognizant of the fact that the penalty has be that's that's right your other penalty has to be paid and in fact all of the penalty that has been paid by mr larson which is one point four million dollars toward the penalty is what he's seeking to recover what do you make of the fact that that congress with regard to this penalty did make that remedy available congress did not make that remedy available in this penalty when i would agree that it did make it available in other penalties it did and it's not clear why they did it for others and not this one this one was in existence for four years between ninety seven and two thousand and then it was later amended the assessments that were used has certainly rather but i think the the if congress didn't anticipate the enormous penalty that arose in this case in the application which of course we challenged on the merits in the court below that there's a bit of gross over penalization in the application of that statute  perhaps they didn't anticipate that you could have this or you have here which is a one hundred sixty million dollars penalty and the government taking a position that requires three congresses mine which is really extraordinary  but there's nothing in that statement about the on availability of prepayment review that says if you have paid something you still don't get review that you have the situation where congress made provision for the and why the y did it for some and not for others is unclear but the barrier that's created here is basically to tell a party the government can assess a penalty against you of an unknown quantity and until you pay it in full there is no judicial review anywhere there is no court that is open to you and if as in this case the payment of that penalty is impossible mr larson we've alleged does not have sixty million do rule is that when i can't pay so we'll have like affidavits like we do for sign counsel showing certain level financial ability i don't think actually you need i'm trying to understand the stand right i don't think the court has to go there because i think this court could determine that the full payment rule which was a gloss on the text of thirteen forty six which by its text doesn't say full payment this is collected it says collected and all of the tax all of the penalty in this case that of thirteen forty six when married we have the due process clause requires that there must be a forum open to our client for judicial review and that if the gloss of flora is placed over it and says you must first pay in f whatever the government tells you to pay before any merits review is available to you you run headlong into a procedural due process violation or felicity commission and you can come to the number one point it was a at the time that that payment was made it was computed based on certain the underlying factors and i'm sure his ability to pay at that time that you have sometime morning metaphysic or at my name is andrew kraus from the u s attorney's office in the southern district of new york for the united states mr larson has not fully paid the penalty as he seeks to challenge and full payment of those penalties as a threshold requirement for filing a tax refund action and district court in the nearly sixty years since flora was decided no court has created the type of exception that mr larson seeks here and except not a large part of the reasoning in florida is that there  as a as a remedy for taxpayers and part of the analysis a big part of the analysis of the floor court is that was created based on the background understanding that the full payment rule the pay first litigate later prints it was to give a mechanism for tax payer to challenge without repaint it right in those circumstances where congress and we don't have that here that's true and the tax court has always been a court of limited jurisdiction as set forth by the supposed amount that he actually one hundred sixty thousand dollars but the penalties sas was one point six million dollars the government was convinced that that was the correct amount of government hypothetically  made an error what's the taxpayer to do with nets or well as mr larsen did here he pursued his rabbit is with the i r s office of appeals which is an independent body within the i don't know judicial remedy well the judicial body would still be to file a tax refund suit once he makes for entertaining after paying nothing i mean and if and if the government if the i r s made a horrible mistake and made it you know hundred million and should have been a million the taxpayer would have to  judge to look at the that is the consequence of the full payment and sec the toughest problem we certainly recognize your honor that mr larson is in a difficult predicament as a result of the long part of the analysis with regard to the determination the congress decided to give an alternative but didn't seem to think that that was of the constitutional dimension and it appears at the very end of the decisions is but in any event of this i mean i know of no case circuit and johnston looked at the question of whether there was a due process issue as a result of a taxpayer who was not able to pursue a prepayment remedy and tax court and who allege that the costs were prohibitive to for him to pursue a tax refund hardship argument ignores entirely the right of the taxpayer to appeal the deficiency to the tax court without paying a cent yes certainly in cases where the tax court review is available and the tax court review prepayment circumstances is available for a large majority of iris assessments but congress has not seen fit to make tax court review available for us as language that language seems to suggest that there might have been a different result if there had been ensuing decades based on the background understanding that the full payment rule did in fact in this the full panel rule is essentially a court may rule right even in florida not the court says we think the language of the statute says this but it's  not clear well i think that the floor court was conducting an analysis of the statute to determine what was intended by that statute but yes if that the specific words for payment do not appear in the statute but the floor court goes to great pains to set out all the reasons why i believe that it determined that the full payment was understood by congress at the time and the various successive amendments to the relevant jurisdictional statute was was baked into that to that provision  whose exposure now is there a new number i'm not aware of any additional payments that have reduced the total liability below the sixty one million or so that set forth in the papers and has there been any adjudication of use was the calculation but ultimately became known as to whether they were in the context of the respective investments and or losses and gains i'm not aware of any cases that have addressed that particular issue with respect to these tax shelters as they were structured have to get back to you on its occurrence position that he would have to pay sixty one million to be able to come to court at present yes presently at one point it was one hundred sixty million but because of the other other collections right from jamie as ever live a couple motors at which there theoretically could be additional collections towards that number in the future but i'm not aware of any better currently and there's no due process concern because there's the ability just wesley the duration of the penalty here is initially a ten year period for collection which can then be reduced to a judgment and then the judgment last as long as the underlying state law permits it which i think in new york is another twenty years and it can be further  rolled and rolled so it's essentially a life time penalty and if it's not and if it's not paid by the end of his life it may become a death of his estate the position taken by the government allows the executive branch to control well i think congress wisely created the board tax appeals in the us tax court with an eye towards giving an access to judicial review the assessable penalty regime has not been given the same treatment by congress why it has elected not to include that in the tax which jurisdiction one doesn't know but it may be because it didn't perceive it to be as large of a need or there may be other reasons but that doesn't eliminate the due process problem and i want to come back to us wesley go to something you said about the government's interest in the payment of tech payment and collection of taxes which of course is critical in the question talk about that but this penalty doesn't arise from a tax it's not a tax in and of itself and that's true it is it is not even computed as a percentage of tax or money even ever held by mr larsen it is a penalty for failure to file the shelter going to ration form and it's computation the one percent computation is based entirely on the i r s as unilateral calculation of the amount invested by others and so they don't have the same there's not the same need to protect the public fisc in the tax analogy for the due process claim where there's been some good ministry to review it's deemed inadequate because the that there is no there's not a bar to getting into court because because of a financial re you have one i don't know any and it's not asking i'm not aware of one it's a very unusual scenario i mean i don't know i've seen a lot of takings cases in my days both in state and federal court but i've never seen a case that was premised on a financial you know like a bound something like that requirement and so i'm not aware of and i think the a p a cases there are narrow situations with respect to the i r s where the administrative procedure act has been used in lieu of another mechanism for where because of sort of the unusual sequence of events and the only usual fact pattern there is not sort of the normal route to getting to d p is it a different inadequacy as opposed to matthew's kind of balancing with regard to due process going