melody issues that the other side raises let's say you win this appeal and we say that this revenue ruling is unconstitutional how are you better off because the i r s it seems to me then they have to decide whether you qualify as this type of organization under a more vague standard that gives them even more discretion because the regulation that would you have a challenge would you say the question is whether you're primarily engaged in promoting social welfare which trouble with the last revenue ruling let's just not do one we're just going to use this regulation would you i mean the regulations a lot vaguer i think the i r s would be in a position where they would have to issues of kind of guidance to the regulatory community what standard  led to an as applied challenge if you had been willing to go through the route of why isn't that the proper road to take when we can get away from the issues of standing that  district court as the statute requires in those cases we have the i r s issue a writ issue a refund and render the case moot so they've been able to protect judicial review  constitutionality of this tell us through those that know is being harmed if the injured party gets their money back what's the harm that that actually is it is it gets to the point of i think the distinction and our challenge versus other cases look let's talk about the injury because you say in your brief you have no investment income so as i understand it you can be a social welfare organization and you can run ads a fair amount of time that are deemed by the i be supportive of a political candidate and yet you pay zero tax so what what's the problem with with doing that because then the i r s would determine that we are political organization and that is the potential and that is because once you become a political organization  particular types of donors i saw that about people who are regulated by the f c c but i didn't say i saw that in your brief is there anything in the record that shows any evidence that shows people wanted to make those contributions but were chilled or that you or your group relies on those statement that proactively you know in the future if you become a political organization that we would not contribute to you but what we do know is just as a matter of state statues in various jurisdictions is what type of spending how is this classified how much is too much because you just can't you know actively spend that money willy nilly without that concern on us more they do say you can't if you're i read the cases to say if you're late or subject to final agency action you're then back in the ballgame and being able to bring a challenge but how have you been subject at this point to finally agency actually i think there's a couple of points on this i was not if the government wants to take the position that revenue rolling two thousand and four dissects is not an interpretive ruling but is instead a subset of the ruling we just invalidated as a violation under the administrative procedures act because it would be beyond the bounds of their administrative authority and i think also to those cases that when a regulation is applied it restarts the statute that involves that case in the difference there  paradise for this court to understand because of the reliance on reagan is so strong we are not challenging the holding of reagan there's no question that the government the ability to create roles that create subsidies for social welfare organizations that want to engage in issue advocacy but not when they're engaged in political speech that's the difference because we are not bringing this challenge in order to get any tax benefit or to any tax subsidy it is all about our first amendment freedoms of association and speech and you agreed tomorrow congress could say you know what let's change let's make five a one c force social welfare non profits everyone let's get rid of these exemptions pay taxes that absolutely within their authority right you change them so then how is it an overbroad problem because your over brother concern would be the i r s is improperly incorrectly categorizing some issue advocacy as candidate advocacy and if they could in their view if it's not unconstitutional to do not provide an exemption for that advocacy in the first place we do not believe that the statute itself that  number one one of the concerns is is that shared our challenge as profit organizations is injured in determining that it doesn't cross  you know statutory authorize content of speech groups don't go there because if they get too far from too close to that line they don't know the outcome as to how the i r s is going to judge it and that's what we're simply one we don't want to change the rule that says we can't we're not asking to spin an unlimited amount of our money on political expenditures all we want is when we do make expenditures we want an objective test that we understand exactly how to apply it to where we can apply to to a communications ok we know that your proposal and what would be an idea of something that would provide that guidance i  think that what the supreme court in the test that they created in the wisconsin right to life case is a very workable case that for organizations and issue advocacy nonprofit groups that make these certain expenditures the called electioneering communications because they mention a federal candidate close to election but they struck down what was a vague and overbroad test much resembled this one they crafted a new test that i think is is it's it's found it's turned out to be very workable in the regulated community to understand where that is an i think that's a challenge we face we have if our organization if we did say run an advertisement that constitutes an election nearing communication but it's not express advocacy the irony right now  hearing to the supreme court's test that they set forth in wisconsin right to life but the i r s could come out differently in their facts and circumstances test there's this oftentimes th gap and it's not necessarily because theirs is necessarily more inclusive more activity i mean it is it is but it's more because you could have a single i r s agent that just interprets these eleven admitted it following the lois lerner scandal was they are the problem with a lot of the unlawful discrimination that occurred here was the fact that we have a very complicated test and a lack of training and the problem is that the agent c level in applying the test that it wasn't their intent to discriminate against anybody body but it was a result of a test and that's exactly why we're here today if the problem was the test let's get the test fix that way the regulated community knows where the boundaries are on your vegas issue right you know the internal revenue code is company versus minnesota commissioner of revenue that was a case where there was a use tax and  subsidy involved it was a it was a taxation case but the court realize a kind of recognize in that case that it had this separate first amendment concerns because of the those subsidy there was no taxes but the governments the texas government put on certain restrictions on advocacy on the organizations that took advantage under this texas back and that was also an instance where strict scrutiny was applied even though again it was a revenue revenue raising related  related to political at the sea the regulation says that the promotion of social welfare does not include direct or indirect participation or intervention in political campaigns and so that's the standard that the iris determine eligibility it is used to determine eligibility i want about the argument that even if they operate as a five hundred one c four and there's no tax consequence because they then one of the investment income that that will result in  the i r s you have to applaud your political organization five twenty seven organization and might my review of the private letter ruling with the fund where there's a final determination made up of you know that that somebody that an organization  on them and they like to stick it under the dome and it just to go but they seem to say the status has an effect on their contributions not not really on their tax treatment but the way they're treated affects whether they're able to get contributions in the first place when that be a way around the injunction if it's really just about that what they're stat if they're given this five a one c four status and it's not about whether they have to pay any taxes and you know because it's going to impose these these these tax consequence on is i think that that will lead to the bad the lead to the tax consequences but i also think that it comes back to the standing point too because you know take away the the revenue ruling that they those concerns that they have of the surface and secondary concerns about you know how state law interacts with with this this s a different touch them of frankly a more bright line tast and that that did not become final there were lots of reactions to that it inspired lots of comments and there's actually in the most recent sort of budget rulings congress has said it brusquely the iris cannot address this issue so i don't know if that means that congress plans to address it but it's it's i don't think that the i r s can just that this court can to say that i think it's it's clear that sort of the the test for for final agency action is that's got to be the consummation of an agency's decision making process and it's got it determine the rights for obligations and occasion  that's why the administrators peel is is stay but yet they can there's a there's a purpose so the section seventy four twenty eight of the internal revenue gives them a a way to to challenge that determination a final determination made to the i r s that there that they are not tax exempt under five a one c four so assuming that the proposed denial is finalized by the iris in the irises yes or you know with this for sticking to this and and you've got too much political campaign intervention to be primarily about social welfare analysis section they apply before to be applying the the regulation you know discussing some factors that you could say you know have some some cross pollination with those those two tests  getting to the merits of if this court gets to the merits we think that taxation with representation is absolutely determined that it's factually a very similar case where the challenges to  the rule preventing five a one c three organizations from engaging in lobbying activity the supreme court says quite clearly that you know simply not not decide not to subsidiz lobbying as extensively as it subsidize other types of activities that nonprofit organizations engage in is not amount to a banner restraint on one speech that that gets analyzed under a strict scrutiny analysis and then secondarily the supreme court said well it's also relevant that you can associate with a five a one c four organization that is a lot a lot so you really have that that avenue open to you to to do the kind of speech that you want to do that the same thing is true here so as an initial matter it's you know this is a this is this test to the extent that it bears on the on the eligibility for five a one c four status is about you know where the line is about you know how which type of organization which type of activity that that the government is going to subsidize and which type of way  then that freedom path like any other five a one c four organization has the the option of creating it doesn't have to be a separate organization just a separate segregated fund that can know where you're going to be something and it really is a general this is why it's confusingly labeled and exempt function is five twenty seven or it is a political organization speaking l said that we had requested at the lower court a state of replication it is the irises policy not to process pending applications during litigation and so that was the case and no application was approved and upon a hill we did enter an agreement that we continue not to be processed until the finale this number two the option of creating a separate segregated finer different political organization argument has been made we are not necessarily opposed to creating a separate segregated fund to conduct our political activity the problem is is that we are still left in the same situation of anytime we make it an expenditure we have to know what is political activity or not so the ability to have an outlet for a separate five twenty seven organization is not really you know you or your limiting that to particular donors that are in lies the problem is that you have to err on the side of safety and that is now but impacting your rights to freedom of speech in association that is either how would you  you on that on that money that comes in through there that would be subject to the that would be subject to the x r a but you don't have investment income i mean or the investment could be left in the same situation really the buy twenty seven  impact on us other than erring on the side of caution is a violation of our first amendment rights number three talked about if we are denied application to get at the question of what we become by law in statute if your primary purpose of as an organization is to influence the outcome of the election by statute you are a political organization so if the i r s determines that we are primarily engaged to influence the outcome of an election by statute we are a political organization he also said that you have to apply to become a political organization there is no application it's a matter of following a form it's the i r s form eighty eight seventy one that how it would apply just the kind of in a way because there is a relief to my time is up so your brief covers many things right thank you your honors consider this power take a brief recess before hearing the next