remedial rather than punitive and that those remedial penalties should not abate it adopted a three factor test for determining whether civil penalties were penal or remedial and the factors are whether the structure is intended to address individual  runs to the public whether the recovery runs to the harm to individuals or to the public itself and third of whether the recovery is disproportionate to the harm caused in the murphy investigate and the government ends up being harmed in that way but the penalties at issue here are not measured by the amount of harm that they're measured by the aflac one thousand or ten thousand dollar penalty now against the individual taxpayers who may have followed bad advice in connection with a tax shelter the penalties against those individuals are measured clearly by reference to the tax deficiency that is by the by the harm have those features just saying somebody has been harmed i think proves too much in this case because the issue really is is whether it's for real whether it's compensating the government panel or for the harm that it caused the government or whether it's punishing the a fraud penalty that are all measured directly by reference to the amount of tax the accuracy penalties and twenty percent less the transaction penalties of thirty percent in the fraud penalties of seventy five percent so you've got that kind of you know mapping of whatever the harm amount is over to you know to the penalty about if there's a correlation in connection with these particular tax shelter penalties or a thousand dollars even if there is no harm to the government if somebody makes offense twice put in jeopardy of life for them and they say that only implicates a very limited set of sanctions and in fact they said it only criminal punishment you know and they looked at other punishments they said only criminal punishment really s analyzing the civil civil forfeiture the court ruled that because the civil forfeiture was not limited to the extent of the government's loss and was tied to the commission of a crime it was in fact shooting the purposes of the excessive fines clause and there's a bunch of both civil penalt of somebody just because you think that it might be something that you want to know and you know these but there is in fact an identity privilege here revealing all those records would basically local eight hundred fourteen versus waterfront commission and the other is the recent new york times for suspends all those cases that just came out in august of this year it basically said one of the third party plays an integral role in the privileged relationship those records in the first party's hands from a privilege and the waterfront case involved a situation where there was a payroll service that was collecting union dues and even though that was presumably public you know but hey this is in trouble for the privilege likewise in the new york times case the fact that the reporters phone records were maintained via telephone company in the us you know in the third party stands the court ruled the pot was in for a call to the journalistic enterprise and just have that kind of privilege the bank in this case is really a necessary third party no lawyer can operate fashion thank you very much states and response to a question about what the bright line is how we decide whether the penalties that issue our civil war he know i think the answer is found in the case on which r and the consideration of several factors to overcome that congressional intent and we would maintain and i appreciate the thought that we're somewhat swimming after our tails because i think it's difficult to reconcile some of these cases and we would argue that that's the line of cases in the analysis that should be followed th you need to clear you first look at what congress intended in the provisions and under what you can look at the seven guidepost to determine if there's clear evidence that congress didn't intend that i think that what i would say if you analyze those factors and they indicate that it should be considered civil it should be considered civil and i think what that's been indicated was that there are number of factors that can cut either way but the privilege issue before the court i think it's clear this court held in harris worse the c united states that there is no privilege that applies to bank records there is neither an attorney client privilege and they declined to the court declined to create a our first amendment cases which are somewhat different than the attorney client privilege and i believe the water from the court eventually determined that the privilege although circumscribing what the government was looking for in my case help with the