iris summons litigation that purely legal conclusion was wrong and this court should be the decision below your man the case to the district court for the proper application of the correct legal standard now i think it's easy to understand this case  employee who issued summons then that that declaration or affidavit would have to satisfy or powell stands now stuff point did not change as a result of the clarke decision if the government clears the step one burden for disprove one or more of the power factors or make a showing of abuse of process such as bad faith or improper purpose now this court had described step two or stage two and sure and the text her most particularly specific allegations of bad faith and if necessary produce riesling particular lies evidence in support of these allegations but there's nothing in those statements that suggests that that bird who can't be met by circumstantial evidence but particularized evidence can be demonstrated circumstantial evidence it's it's an evidentiary standard it's not adventure burning through direct evidence or circumstance or circumstantial evidence without a doubt and the quality of the evidence be it circumstantial or direct the same is the same weight in the course mind regarding the validity of the government's purpose now after clark the taxpayer has to clear his speech to have it entered burden when he can point to specific facts or circumstances pause of raising an inference that he's not saying that clark didn't change and he will in the circuit he's simply saying he didn't change it in a way that bears on the court's consideration of sixty b because it wasn't meaningful given the fine here this is not the that examination that language is that entitlement that right at the stage three but that's only meaningful if the judge was thinking that there that the reason you're not getting it is because there isn't a right seems to me here is who is saying you just haven't shown what you need to show to trigger the right and therefore whatever clarke says what the right is isn't meaningful and doesn't they are certainly for rule would submit that in this case given the declarations of the two attorneys that are in the record that i submitted to the district court in support of the rules sixty motion that what we have here is the government attempting to which a claim fraudulent or otherwise residents were applicable and so far as attorney client privilege is concerned that is generally understood require a specific claim that a specific inquiry violates the privilege and cannot be claimed in a blanket way as your pleadings did though whether whether you talk about the burden of being is being hit the hope of being plausible  i question by question basis because the questions hadn't been exactly you were premature with that so that you with respect to those claims there was there was nothing at that point that could be litigated and i would and it was clear below taxpayers attorneys are not allowed to participate in peak iris interview of third parties including their accountants and clued in their attorneys hearing under clark second even if they were they were relief is not available at this stage under rule sixty five so in this case what's important to note that this is not being appealed on the merits of the automatic evidentiary hearing all the taxpayer had do was that was asked for in essence because all the taxpayer had to do was to make an allegation of bad faith without any particular ised allegations or with stickley without any evidence of bad faith that supreme court and clarke said that that was not the proper procedure and the supreme court mentioned in a footnote that all the other circuits had a different rule including this circu credible evidence of bad faith and the preexisting rule in this circuit as expressed in sugarloaf and previous cases was that there is no evidence or you hearing unless there's specific facts and evidence and it has to be was noted here evidence can include direct evidence or circumstantial evidence so that fits perfectly well with with part of the supreme court did not have one word of criticism for this court's decision in sugarloaf and  was not the reason that the court case came about now the opponents here have failed to demonstrate they're entitled to any evidentiary hearing and a court because they've never made any credible showing of rain showing credible evidence of bad faith the decorations that they submitted with their real sixty five motion or blanket assertions of privilege they essentially suggest that any time a summons is sent to an attorney or any i guess any other professional who has a privilege relationship with their client that that would be evidence of bad faith and of course it's not that would that sort of assumption would have essentially seal off a whole number of professions including attorneys from didn't make a showing available it was necessary there i did want to clarify one matter that was addressed by my counsel here in the three step process that sugarloaf set out for  must introduce evidence to support his allegations so this just says that all the taxpayer has to do is introduce evidence to support your allegations now in clarke it's it has to be credible evidence and it has to create a  possible inference a bad face so you could argue that clarke is actually setting a higher threshold for taxpayers than the circle of case does and so even harder for them to get an evidentiary hearing and we're not saying that we think that sugarloaf is quite consistent with clarke but if there's any daylight between the two i think it works against the taxpayers here and then my second major point is that there's no relief available here under bill sixty five the a noted there's the taxpayers did not appeal the sums in force and decision on the merits and that sixty five only allows relief i want a final judgment prospectively is no longer equitable it's a it's a standard  there was a long term injunctive order in place but it's not available where a party simply wants to relive it a settled issue such as here in an appeal final judgment because they claim that the law has changed  if they were allowed to use sixty five here that could open up the ability of litigants to challenge summonses that have been in force long ago and there's simply it would interviews like it was you know they could return document they could order the return of documents they could order the destruction of of materials or reduced or destruction of transcripts or whatever else might be appropriate in those circumstances so in that sense the wrote that the the standard is different from both the taxpayer clark and the government in clark the supreme court found in middle ground and that middle ground between eleven circuits