good morning made please the court what is this case about it is about whether the i r s and take three six or even nine months of a person's life or government research without the person's consent each year fourteen thousand americans are pulled from a hat and subjected to a three month long life in danger in irish audit conducted for research purposes we  d to the audit on section during constitutional grounds and asked to be exempted on medical grounds and provided medical documentation that the audit was life threatening retaliated and turned our turned our one year ordered into or three or audit the first second and fifth cause of action of the complaint are founded on both presented with two days ago the a p a finality issue is eclipse that's the only remaining question british court is whether the anti injunction act applies the act does not apply the determination of our claim will not result in a tax to determination it did you did did you address counsel direct marketing association sorry did you counsel address direct marketing association vs brawl a supreme court case from two thousand and fifteen and the frederick sun versus starbucks case of this circuit which has two thousand sixteen case in and kind of and i basically in this case the issue is as i said first if the if the court possibly is referring to the question of whether it is also referred to as the black line of decisions does he act also apply to activities that are intended to or may call minae and an over a nine month audit is not such an activity it's a horse of a different color than an order an irish examiner who is trying to destroy you is not such an activity one must order that endangers your life is not such an activity well this was we were not presented with that that type of decision we basically had presented with an audit what the i r s was doing in this case isn't dependent upon any of the any of the summonses but you could have as i understand it you could have refused to provide the information which would have required areas to bring a summons enforcement action in the district court and there you would have been able to address these matters when you they would have to do that or all what they did actually in this case without doing that was to which would convert into a convert into a deficiency judgment so instead of having an order from hell you would have a tax deficiency from hell in which basically a million dollars of part of a research mechanism that the i r s isn't actually claiming at this point and that the taxpayer  expenses that a law office in this case operates for thirty three years and a million dollars of expenses don't exist and that that becomes a deficiency judgment and then you can apply for it you do you have a you have a million dollar deficiency judgment on your head and you have to you have a deficiency judgment from hell in a tax tax court case so that's the way the process works if you don't participate in assume you all millions of dollars of taxes i mean is that that's one of the ways you can work yes they could i suppose issued a kind of subpoenas you're suggesting but nonetheless the bottom line is that if you don't participate you pay a steep a huge price if you don't participate but i mean the context of it is first the question that there is a section of internal revenue code section seventy six zero four which allows you to raise a defense to a summons enforcement action and therefore  relief on on constitutional grounds federal courts must attempt to resolve the conflict by fashioning relief in such a way that allows the our rescue collect taxes without violating the constitution so in this case the and as for the industry exception even assuming that the act applies it's also subject to an industry exception it's a two prong test basically and at a pleading stage there must be pleading of irreparable injury and that was that was fully blood my health was endangered our blood pressure was in the air it was and it was in a death so own examiner tried to destroy us financially took and sick well i'm sorry but i'm not going to stop talking because i can't talk that way so i'm sorry and ask again the question what are you doing here the government  auditing the tax returns of the backs of these people are clearly sick and elderly and you are hurting their lives and why are you why is the government why had they chosen these people were they doing th significant number of deductions which i think this is a pure research well what the got what the i r s is trying to research is the difference between you think this research out is a cover for actually going after what people's tax returns are accurate as filed the i r s needs to ask questions to confirm the information on those returns that is all the i r s code so do how long how long has had these  assess any additional tax within three years of the additional return being filed and if an audit extends beyond that time it's because the taxpayer has agreed to extend that period now  counsel indicated that the choices in this case are either to participate in the audit or suffer the consequence of a possible deficiency judgment as a practical matter what's the consequence for refusing to participate in one of these action the i r s could also did it when that's when the auditors concluded which as mr baxter just explained this one is not could determine a deficiency and tax that would be involved it's not a deficiency judgment it would involve sending and notice of deficiency to the taxpayer and the taxpayer can bend go to the tax court to dispute that notice of  that would be an issue in the tax court the tax court would refuse to uphold and this court stands behind it in refusing to uphold a naked deficiency assessment so if the i r s were to make a deficient make a deficiency determination that was unsupported by taxpayer can respond to some reason for some action which sounds like you're saying that they are is has more options than that that if the person refuses to comply that they are asking and indeed go ahead and mak assessment based in part on the fact the person hasn't responded not based on the fact that they haven't responded based on other information available to the i r s so in this case in the case of this audit other institutions  lawsuit i would not direct marketing was not briefed in this case but if it had been i would have cited the tenth circuit case from two thousand and seventeen grim solution retail which addresses the issue whether direct marketing from making this transforming this into from a researcher into a regular audit in order for they research to provide the kind of database that from they received from the banks or other sources she concluded that additional you know should be investigated probably considered research or is it something else at this point those are regular audits there's there's no real legal distinction between a research audit and a regular audit the question is just whether the data goes into the database for drawing analytic conclusions really well you say direct marketing doesn't control and you cited a case but isn't this more like information gathering rather than tax collection at least at its inception it may lead it may lead to the i r s taking some action to collect taxes down the road it might lead to a tax assessment which is a term of art in tax law which always prece collection so right it might lead to that but the supreme court hasn't been so flexible in terms of finding that very something that leads to tax collection or assessment right to be viewed as that and they laid out in direct marketing kind of four stages of activity in the tax collection area and the tax i mean the tax area and i what why does this fit into a session man or collection rather than into information gathering which may then lead to an assessment a collection of all of this the process of audit that leads to an assessment is that the information gathering in at issue in direct marketing was not an audit other particular return it was information that required to be submitted by third party  state law and it was not the anti injunction act that was a dish and direct market and it was a different federal statute that has a similar effect with respect to state laws it's been distinguished in the green solution case by the t circuit from the anti injunction acted issue here and a lot of the reasoning and direct marketing and that division into the four stages is based on the state of the law and i think it's one nine hundred thirty seven when the statute there at issue was adopted the statute here at issue was adopted in eight hundred sixty seven and the the reasoning about the state of the law nineteen thirty seven is not equally applicable to it it's clear i can provide you with a information right here but i think that it's clear that the eight hundred sixty seven statute indicates that inquiries into the amount of tax properly do are considered part of the action taken in this case was not based on a lack or response but was instead based on information provided by third parties or banks  i believe this goes outside the record one point of fact it was based there was a for example it's we provided four boxes for bankers boxes of documentation of expenses to d r s because this case involved retaliation the examiner good look at those four boxes or entirely ignored them and went ahead and made a made his income determinations expense to terminations basically finding that my office had operated for three years without documentation with respect to decca direct marketing apparently members of the panel are interested in that since it's wasn't wasn't addressed in a brief would respectfully request the pleading and also contrary to the facts all three of these years were part of the research audit all three there's also the can i please clarify that because i understood opposing counsel to that is absolutely not correct additional years were simply added as part of retaliation had nothing to do with the information obtained it's also suggested that there's no difference between a regular order in a research audit and not just the research arctic goes to data databases again that's absolutely false and the information regarding that claim is provided in our reply brief and we asked to obviously we have no problem with the information from our audit being used in a database why would we care instead instead our concern was the fact that the i r s took nine months of our lives and it was also suggested that if if the this notice of assessment were made in point of fact that's not what happened in fact we gave the i r s when it was ever required and ever asked for all the extensions they asked for every single time she was saying actually that perhaps you shouldn't have given them an extension ironically her point was if you stopped giving them extensions and they'd have to do something else well if we didn't give them an extension they would close the audit and basically will do what they did anyway and say you know thank you very much always a million dollars because your office doesn't have any expenses even though we give him four boxes of documentation of expenses so it has nothing to do with the extensions or just have nothing to do with nothing to do with the case i didn't find the argument  completed i know they're all they're all coupled they're all part of the same audit and i'm going i'm going we're attempting this is outside the record again it's separate and apart from what's going on here we're still we requested that so do you still refuse to participate in the ninth circuit mediation i'm asking whether you are you are willing to mediate this particular case you are willing to mediate this particular case you just said she was willing to mediate this case well she just said that  submission of this case pending the supplemental briefing and we're going to confer after we're finished with the hearings for today and quite possibly decide