restraining the assessment or collection of taxes for three main reasons st cia is challenging the notice not the assessment or collection of any action under direct marketing the reporting requirements of the notice triggers d under direct marketing check c i s injuries have nothing to do with tax liability and injuries are the cost of complying with the notices reporting requirements and the loss of business that comes with being labeled the reportable transaction n counsel i think i heard you say that you're asking that the notice be set aside but maybe it's a technical matter but that's not actually what you're asking you're asking for an injunction against the enforcement of the notice does that make a incidental effect of it and here are suit is aimed at the notice that is the thing that's being challenged in the thing we want the enforcement to be enjoyed for we did not ask for an injunction related to tattletales we didn't challenge the tax penalty so no tax penalties are pending or i wonder if you think congress doesn't have the authority to refer to it as a tax that argument mr chief justice these are tax penalties they are taxes under the code marketing it would have to stop and the thing that it would have to stop is the actual formal process of assessment or collection and we don't think our state does that because we have not violated the notice and iraq has not begun or even threatened assessment or collection yet violating the notice we are a lot buying company that has no plan to incur tax penalties have you ever  to thinking of your having some way of getting there disses review why can't you state your underlying claim which is you have to  s promulgated this kind of rule reporting requirement only after having a room id so what you do is you file a piece of paper saying give us the room and  say no you go to court and say that decision was arbitrary capricious and abuse of discretion because they have no other way of doing what they want to do except through a room and there you get exactly the review that you're trying to get justice prior in south carolina versus reagan this court said that the plaintiff must have an alternative way to write his claims in a refund chute or an educational so i just told you the alternative and in my response that quiet justice alito you offer several theories for alito is ours when the taxpayer or the person subject to the notice has already filed late and the regulatory requirement such that attack penalties will definitely be assessed or they have been assessed already i think those cases pointed to the questions that i raised which are what is being challenged what are the injuries and does apply to have a refund to and all of those are entirely objective inquiries that you could determine on the face of the complaint and the relevant statu notice invalid and a declaration that penalties can be assessed against you i don't see how you get around our cases daily after cancer and several other cases notice that you don't have to report and fix the government can't collect taxes if you're talking about looking at practical consequences your failure to provide that superficially like our case but unlike our case in those cases the revocation of tax exempt status the thing being challenged did not injure those plaintiffs the sole injury alleged in their complaint or their tax liability and another quarter important distinction underlying income unemployment social security taxes and then sue for refund we don't have the option there's no tax available for us to simply pay because our injuries  were saying is that even if the government sort of every step of the way as to what the requires but there's still a kind of back and political exception that's created by that case is that what you're interpret the sat it just says it seems fair to us it may not be the most tech based opinion but the same could be said of bob jones sometimes i think the rigor that was present direct marketing is missing from these cases but i think differences i don't agree that those are different justice kagan i just don't think that they matter this court has said over and over that the constitutional versus non constitutional nature of the claim is irrelevant for purposes of  really had no response to the bailable we are in the same situation in the sense that the only way we can get a refund is by committing a crime risking imprisonment and massive fines and violating our professional obligations as attorneys and  another i'd like your thoughts in response to that injunction and the tax deduction i have been linked for a long time and i don't think that link is something that can be on done the tax injunction act was model and i think what this court has to do is look at the precise language of each statute and apply it only as far as the language goes and neither statute of those courts have a direct marketing was meant to cover the entire waterfront of all cases involving taxes they were this capital thank you chief justice and good morning counsel i want to give you my thought about how i'm looking at this and get your reaction so on the tax the penalty there was not a tax here it is so defined as a tax and therefore comes within the scope of the anti injunction act but then we get to the question and there's and there's other questions but the r tax question the bob jones and alexander cases and i want to get your reaction to this which is i think reading those cases as they are poses a problem for you but i'm not sure those cases are should be read for all they're worth another word wondering whether those cases we should back away from some of the implications of those cases for challenges to regulatory taxes for the reasons some of the reasons you've given here that it seems somewhat unfair as a did even in those cases somewhat unfair to force someone to go through the process so i think the way to cut through all of that is our south carolina versus reagan argument and i would just note that in the photo makers case in the d c circuit reagan was not an argument raised by the plaintiffs and in fact the government pointed out that  an independent regulatory requirement i think that makes all the difference because when you're asking what the purpose of a suit is you want to know it and ask and it is aimed at a regulatory task at a much different case than an aimed at a regulator that is  and you know the government's approach and thinking about why this is different from direct marketing is pretty straightforward if it's called a tax you know congress put this call it a tax even though it's a penalty it call it a tax which seems to indicate congress's desire to bring it within the  a but you're saying it's more it's more subtle than that it's more complicated you know this is we can't we don't have a choice of just paying it and then seeking a refund later so could you be a little bit more specific than you were with justice alito of what do we use to figure of restrain a nd class mean from direct marketing already so we think the way to establish the purpose of the lawsuit which we admit is fairly unusual language for a statute but the way to do purpose comes from this case of court cases and what you would look at is what action is the plaintiff challenging and whether that assessment or collection are not one of the plaintiff injuries and are they independent from tax liability or not and what else how else could the plaintiff bring the lawsuit if they have a traditional fund the vailable or not and we get those from bob jones direct marketing and regan and i think those three questions will answer just about every injunction case and here they all point in the same direction and demonstrate that is not our purpose would it be cleaner for us to go the reagan route and that maybe you know phrase it this way that this is covered by the and however because you would have to incur criminal penalties in order to do that you have no adequate alternative remedy so even though the amp plies it doesn't buyers would you be satisfied with that approach we would just bear that we just want to go litigate our e p a claims and that resolution would be fine with us makes it much harder to attract clients labeling something a reportable transaction is serious which is why august told the i r s to use notice and comment rule making when the i r s refused to do that cia did precisely what we want law abiding citizens to enforcement suit under the a p a and it is fully complying with the reporting requirements while this case is pending according to the government however what the cia should have done is deliberately violate the tax code the government denies it all together thank you thank you counsel mr bond mr chief justice and may have please the court at the heart of this case are two code provisions that are unambiguous and a rd of the scope is disputed the st clear provision is the anti injunction act provision is that sixty eight dollars the penalties are subject to the a i a which precludes pre enforcement review and instead channels disputes to refund suit together those two provisions resolve this case because petitioners complained on its face that page sixteen seeks to enjoin the enforcement of reporting requirements but aren't forced by sixty eight the penalties positioner leans heavily on a rd provision section seven thousand two hundred and three which makes certain willful violations a misdemeanor and which it says requires committing a crime to obtain judicial review petition or misread that provision which does not criminalize the very avenue of review this court commended ninety three years ago in sullivan and has reaffirmed since a filing a timely return that asserts a good faith objection to reporting certain information and you know order to obtain review petition or can do that by incurring the penalty paying it and suing for a refund but even if seventy two or three that allocation were ambiguous the way to harmonize all three provisions is to hold the congress meant what it said unambiguously in six thousand six hundred and seventy one in the a i a that these penalties are treated as taxes that must be litigated in refund suits and resolve any lingering dispute about willfully to preserve congress choice to petitioners approach of leveraging one disputed word in another provision to override the clear text of six thousand six hundred and seventy one and the a i a has things backwards has offered no limiting principle to avoid subjecting many other similar requirements enforced by taxes to preach foresman suits hi mr mr bond i think direct marketing the real problem for you dies so i'm curious about how much weight you think that can hold if congress passed a law saying that there is a one dollar tax penalty for the other decisions do that regardless of what the plaintiffs objective motive is whether it claims that the attack is really exerting some regulatory effect this court has time and again rejected those arguments and looked instead to what americans united called the relief requested if that relief would legally barred the collection of attacks and yet congress made the determination to channel that dispute to refunds if it's not a limiting review it's simply channeling it to a different forum and we know that that review is real because that's been the case throughout the ai of history going back to believe versus george at the same day that the court held a pre enforcement to bar the court reached the merits in a refund suit same with bob jones that decided not to hear the pre enforcement challenge but several years later bob jones was able to litigate the merits do you think that there there is a presumption in favor of pre enforcement review we think at least that any presumption in favor of free and forced labor of us as this court said in illinois counsel much weaker than the general presumption of having some review at some point the court has repeatedly made clear as under base an an congress said in six thousand six hundred and seventy one of these penalties are taxes and virtually the only consequence of that choice is to say is there any significance to calling these penalties a tax i mean it's it's the same right i mean it's if it were a penalty the consequences apart from the issue we're talking about would be the same there are very few and very minor consequences apart from the a i a and that we think that comes strongly in our favor that because congress classify these attacks as knowing that the elephant in the room consequence is that they would be subject to define the word or the for to assess for purposes of this take we case we take the court's definitions in direct marketing is given we're not challenging those purposes of this case we accept a purposes of this case is the court defined in the court's opinion as involving that final status prior to collection our point here is not that assessment should be read more broadly for purposes of the a i a here we're saying that even if you take all of those definitions as given the relief the petition o the assessment or collection well i think the way to think about that is that the text of the statute says we're looking at the purpose of the suit and so we look as the court has done before to the relief requested as the best evidence of what the suits purpose is so at least in a case like this one where the suit on its face seeks to enjoin enforcement which is done by assessing taxes you would say the suit is one to restrain those taxes i think you get into difficult line drawing problems when you get further and further removed so for example the example that we discuss in our diesel regulations i think you could have to attenuate a chain of connection in order to impute the purpose of the suit to be restraining the downstream tax where for example the plaintiffs challenge is only an independent regulatory regime and force completely separately by an additional agency that also is incorporated in part into the tax code in some indirect way the st suit may have some downstream consequences but we accept that that may be too attenuated to say that the purpose of the suit is to restrain the assessment or collection of attacks but you don't have any of those difficult line drawn questions here to show says you should determine what the suit is aimed at but the complaint on its face tells you what it's aimed at if petitioner prevailed the i r s will be unable to enforce these this notice requirement and or this reporting requirement and it does so by assessing taxes and that i think is the end of the case well normally when you think of taxes and do you think of a tax liability for a detective based on business activity or income generating activity recordkeeping related to that activity where where's the income here and where is the tax liability but i'd say a few things st to the country point about where the income and liability are i think this particular penalty that the congress nominated at tax functions in a way as a substitute tax for taxpayers who don't report this information that the i r s things may pertain to a tax evasion stroud's so how is this tax different from any ordinary  penalty but i'd say two things st congress denominated it as a tax and the point of a statutory definition like that is to say that something that is not ordinarily thought of to be a tax is to be treated as a tax and i think the court has for a century recognized the congress can do exactly that the court rejected the argument that i think underlies that question in george ninety eight years ago where the point was look at the the argument was made this is not really in the child labor tax an effort to raise revenue this is really just an effort to penalize people engage in certain child labor practices and chief justice taft opinion makes clear that doesn't change the outcome under the text of the anti injunction act thank you so much this prior well i think their point or a point is the lincoln point i mean calling something a tax doesn't make it one there are still differences and one of the differences they say is this if the r s tells me i owe some money i pay it but i think get it back if the i r s if if if you're going to legal if the i r s here tells me spend one hundred thousand dollars gathering this information and give it to them i can't get that money back i can't declare it illegal there is no way to do it there's no way to do it i have to keep doing it year after year of course i'll have to follow it i'm not going to violate so that's a big difference and normally we presume there is some method of getting judicial review for an action requiring me to do something by the government when that action is not lawful so what's the way the way how you they get review of it the way here is to follow the approach justice holmes wrote for the cold court and sullivan ninety three years ago and the court reaffirmed in a case called gov versus united states where what you do is you don't simply fail to file a return you don't violate it in that sense instead what you do and the court is upheld is in the context of th amendment objections is you file a return and state your specific objection to particular information that you don't want to provide because you believe in good faith that it is not legally required the i r s and then assess a penalty which then you can sue over in a refund s understanding it is quite a lot of money they don't want to risk the vast what they think of as a vast amount of money so they will pay the penalty they don't want to pay the penalty they want to follow it you mean if they follow the rules they can say we're doing it under protest and then file to get back a penalty they've never paid i'm missing something but i think that's the same logic that underlies the argument the court rejected in georgia would involve in the child labor tax law i think in that circumstance the argument was made to look surely congress intended there to be clients to be compliance with these requirements and didn't intend to raise revenue along those lines and that's the argument the court rejected and here i'm not saying it's not a tax i'm simply asking how do they get judicial review without paying the tab a penalty which i'll call attack how do they get judicial r of the lawfulness of the order that says of the report then to give us the information how do they do it they have to engage in the conduct that they say that they believe to be lawful they simply know that the government disagrees with that saying no your honor what they do is they file their ordinary tax return or in the case of a material advisor they just send a letter objecting to providing this information do they i mean do they do they give you the information or not though they withhold the information that therefore they have by a lated the reporting requirement therefore they are subject to paying an enormous fine called a tax that's what they don't want to do so i'd say two things your honor st if they are right that their conduct is in fact lawful because they disagree with us about that then when they get their judicial determination the result will be that they never violated the law our view is different and they run that risk but if they are right about the line there justice justice alito the code says that willfully failing to comply with the reporting requirement is a crime so i really don't see how they can get review under i r s regulations on requiring to do this but i sincerely believe in this i'm awful in that exactly the situation in cheek where some of the shows i'm not going to file a tax return although i know that the internal revenue code requires me to file a tax return but i sincerely believe that the internal revenue code them internal revenue service are unconstitutional i don't see the difference but i'd say a couple of things st chief in footnote ten expressively distinguish the kind of procedure there were describing from sullivan and later cases if i the case called murdoch that is to the same effect but nd to the line you're drawing between you're suggesting between saying that action is unlawful versus i don't believe i'm actually required to do it i don't think that line works in petitioners favor here  argument at bottom is that it is not required to provide this information because the statute only requires it to submit information covered by regulations and here the i r s has not issued a valid regulation i think petitioners argument falls on the st side of that line now i understand the concern but the only regulations can require them to supply information that is their last and the difference between what you just said and saying that the guidance is i'm awful but i think it's a fine distinction that was the focus of the debate between the majority and the concurrence in chief and to the extent you think there's some uncertainty i think the way to resolve that is to say look we know what congress intended to happen to these penalties because it said in six thousand six hundred and seventy one they are taxes and that means they're subject to the a i a so i think you would resolve any tension by thing whatever willfully means in some other context in this context it does not criminalize the avenue of review the congress clearly made the avenue for this particular kind of penalty and i think the agenda this is a rule of willfulness for the applies only to only under the internal revenue code is what she recognizes that wilfulness of the court is another context the head takes its meaning from context and the court in the majority in chief was clear that the meaning of willfulness is particular an attack on that that has a heightened meaning and although she doesn't flesh out exactly what that means in the context of the procedure that we've identified that sullivan and governor approved mean that i don't think she's disturbed that so i don't think that it's remarkable to say that the meaning of willfulness is different in this context it has been different for decades under this court's decisions and we're simply applying that consistent with what this court has said is the appropriate avenue for a taxpayer to raise its challenges to requirements of the leaves are invalid and i think it's not anything any different from any taxpayer who believes that a particular tax or substantive tax is invalid if i understand something so that they can assess texas against me and i have a claim that i don't know the tax if you say i do i pay the tax i then can sue to say that i should not have to pay the tax how many laws are there like this one disclosure laws where i wouldn't have to pay a tax i only have to report certain information so that someone else can pay a tax do you have any idea how many laws there are like that i think give you a precise number but it's true that within the internal revenue code there are a number of rd party or informational reporting requirements that fit that description and i think that that comes from you know the until the reason i'm asking this question is is something that just prior was getting at which is if they if they give you the information you need they may have spent fifty thousand dollars but they don't need to pay the  makes any sense to you they can never get that money back if they pay if they give you the information or if they don't give you the information so he the way i think the court should look at it your honor i think it's no different fundamentally than any taxpayer who wants to engage in a particular transaction and wants to know in advance would prefer to know before it undertakes the preparatory steps of the transaction are committed to the transaction what the tax consequences will be and if it's afraid of losing in the tax just to that might follow it might forgo that i can write as i see lest i bust i see less problem for the earth then getting the fifty thousand back this year right to prepare for a disclosure we all spend money and we never get it back if we didn't have to make it but the idea is that committing the crime they would have to fail to pay the tax and then pay this a mil or mr balfour more because they thought they were single penalty and comply with respect to the rest and they wouldn't face the tax penalty with respect to all of the other items and in addition in our understanding this penalty is what what's known in tax law as divisible meaning that you can pay only a single part and then seek refund over that and the government has a cross claim for the rest so it's not like they're immediately on the hook for massive liability the minute they choose to follow the procedure congress outline to obtain review and in addition i think it's clear from this court cases going back a century that the mere fact that there would be a large liability to pay if you follow the refund procedure does not mean that this is a violation of due process or otherwise warrant departing from the text of the a i a there often are smaller ones to bother to talk to you about this language for the purpose of lawsuit it seems to me that the relief that's being requested is the invalidation of a reporting requirement now it's true that if it's successful and invalidate any reporting requirements then you don't get to enforce that reporting requirement through a packed penalty the more subtle way of thinking about the suit and i think truly what plaintiffs here are doing is to say to try to invalidate a demand that they disclose information so how does that fit under they say but i would point you to the top of page sixteen of the complaint and the two sides of the boilerplate request the two items of relief they seek are to permanently enjoin the enforcement of this notice and we know that notice seeking to invalidate the reporting requirement so does that fall under the i am not doing it we do think it falls into the a it certainly falls under the tax exception to the declaratory judgment act which petitioner conceived and put no one has the same scope  of claim rises or falls under declaratory relief with a claim for injunctive relief so we think that would be a farce and that's what i'm asking is in the tax penalty here completely derivative and what they really say is what they're objecting to what they have problems with is the demand that they disclose information and remember that an end is backed up not only by the tax penalty but also by a provision that allows criminal counties you know put him in jail  so why shouldn't we understand that that's an independent regulatory requirement independent of the tax that they're objecting to so it's not for the purpose of stopping a test but i think you need to determine the purpose of the s you'll never be able to enforce an invalid notice but that's not the essential purport of the suit i say two things st if even if you just view the suit as seeking to invalidate the notice i think it's still fair to impute to the purpose as the purpose secret and the reason the petitioner cannot do that as it alleges in paragraph forty of his complaint is the penalties if there were no penalties there would be nothing for petitioner to sue about because it would arguably would not even have a credible three backhanding so i think that is the way to look at the suit administrative agencies over on the national economy and the promise was in part that agencies would have to follow certain basic due process requirements like telling the public in advance what it plans to do and giving them an opportunity to comment today of course the i r s regulates enormous wasis of the national economy from our medical care and to our pensions entire nonprofit sector while the educational sector childcare and some estimate that the i r s today fails to comply with notice and comment requirements of the e p a about forty percent of the time should we be concerned i don't think you should be concerned because congress did not preclude review of these that channel them to a particular forum and real world suits happen in which the kinds of claims you're describing can be litigated we fight and i've read the man construction case which is pending in district court right now and just recently the just report tonight a motion to dismiss an a p a claim so our view is not that these kinds of challenges can't be brought or that the i r s should be insulated from review entirely the point is simply the congress made a determination of how that review should proceed and it said those that this kind of review of things that congress deems to be taxes should happen in a post payment world of a refund suit and i think the concerns on the other side would effectively negate that determination  designating these penalties as taxes they should be treated like taxes and litigated in the way the taxing for story has spawned if we were to find that the avenues that you've outlined justice alito or i don't know how hard to square with the statute or are insufficient going to jail normally require somebody to exercise their notice and comment writes from from from federal prison what do we do th think for the reasons we've outlined that's not the way to read the statute but if you if you concluded that's a possibility we invite you to say in your opinion that that's not what seventy two or three means because that's what the court that's not what the court has understood it to mean for nearly a century and i think that in that circumstance you could say that there is th other avenue to review and that there's no due process entitlement to have pre enforcement review but in all of it i think that concern that there would be this massive burden of facing potential penalties this simply overstated petitioner can incur a single unit of the penalty or can pay a single unit because we can argue this penalty is divisible right but i don't i got those arguments thank you mr justice cavanagh thank you and good afternoon mr bond i'm going to tell you where i am think i'm with you and where i marketing i think you have a good point that was not subject that penalty was not to nominated a tax and therefore the reason the two cases would be different is that the text of the statutes is different make a good point there i think in terms of the riggin point how you would do this you say you file what are objecting to it and you then have posed you have proceedings after the i r s assesses the penalty that all makes sense to me as well the criminal point justice alito is point you just said the court could flat out say that it's not a willful violation when you're challenging the reporting requirement so that we could we could say that here's where i think i have a concern on bailey and bob jones and alexander those cases you were having a discussion with kagan either or are you challenging the regulatory aspect of this or the reporting aspect of this are you challenging the tax xpect i think you're challenging both as a plaintiff really and what billy and bob jones and alexander seem to say in the support is that when you're doing that you have to go the a i a applies and i agree with you that those cases support you but i also think just as gorsuch makes a very good point that the current philosophy that's  those cases from a different era the current philosophy of challenging administrative action is different as the chief justice said with presumptions and here where i really think billy and bob jones and alexander may be different is when the penalties are so high if you lose in other words you have to bat and if you bet and lose the penalties are so high that it's going to deter you from challenging the regulatory reporting aspect in the st place so the bottom along mind of bottom line question shouldn't as a matter of fairness modern error of administrative law all presumptions assume we carve out an exception from bob jones alexander bailey when the penalties for trying to challenge something are i that it's going to be coercive in effectively deter you from brain this kind of challenge in the st place so although i agree that that would be a way to limit an adverse ruling i don't think that's the way to approach this and let me say a couple of things about that specifically i don't think it's right to view bob jones and george as out of step with modern interpretation in particular because those cases apply to the text of the statute and they specifically repudiated brief departures in this court's history from following the text as bob jones explained at some length from dollars onward there were periods briefly where the court didn't follow the text contrary to what is done for the st fifty years of the statute and therefore return to that and bob jones that's what the court does today and that's the way the court should approach this and in terms of the onset of modern administrative law i think abbott laboratories are fully consistent with this both of those sources recognize that when congress chooses to make an exception to present force and review or to a channel review in a particular way that neither the a b a nor the principles fuel standards might be too far downstream to come within this what is the test for that i mean i understand you articulated some of the differences that this is you know and housed in another agency but also enforced by these you know penalties that are considered taxes when otherwise you have a pretty bright line it's called a tax then the amplifies if it's called a penalty it's not so if you're willing to say that there should be some exception or some carve out in that context like the e p a s fuel standards requirement what would it be and why should we go as a bright line in this circumstance but i think i would put it a little bit differently i'd say that there is a bright line rule that covers cases where the complaint on the basics relief that would restrain a tax that this case the question is how much further beyond that if it all does the a i x that now in our view it would extend to some extend beyond that where for example the suit seeks a declaration that a particular requirement that is backed by taxes is invalid unlawful and can be enforced even if the suit on its face doesn't take the additional step of requesting injunctive relief because of course that declaratory judgment will have the inevitable effect of barring enforcement by the i r s i r s through taxes and it's still fairly imputed to the to the suit as a purpose i think as you move further along that spectrum it does become more attenuated and i think it depends project in particular on how that other regime works and how it is incorporated into tax law and what relief the plaintiffs seek but i think the easy path here is to reserve all of those questions and say when this suit on  face seeks to enjoin enforcement by taxes and that what petitioners suit seeks it is barred and i think you can leave open the questions of what happens when a plaintive seeks relief against one method of enforcement of iran that is also in force by other means i think the easy way to resolve this case is to apply the tax to the situation in front of you which is straightforward and leave any of those lingering questions for a different case thank you mr bond many to wrap up mr bond thank you  challenges to the reporting requirements as other litigants are currently doing with respect to other similar requirements and as according to play nearly a century ago in sullivan pursuing that avenue will not subjected to criminal liability the court can avoid any doubt on that score by saying as much in its opinion represents congress's judgment that disputes over those penalties belong in response it's fission or hasn't offered any way to square its position with that statutory tax and the congressional judgment embodies nor has it offered any limiting principle that would stop short of subjecting many other reporting requirements back is not every day that the united states government acts citizens to deliberately violate the tax code but that my friends position in this case and that is a critical distinction for purposes of reaching the right decision here this is not as tell it against pain now litigate later this is violate the tax code now risk to jail time and your professional license and if the i r s agrees to give you a penalty then litigate later in the read by the way the one that to make the decision about whether you should receive a penalty is the would be defendant and if my friend is right that we can not file a single report and just get a fifty thousand dollars penalty instead of the s of millions of dollars of penalties that taking an entire tax year off would cost us then that give the i r s a big incentive to never accept that penalty innocent denies our right to go to court the government the only response to all of this is that it would not be a crime for us to take the route that it offers criminality only really goes to our due process argument our south carolina versus reagan argument just required that the governor is the government ave be able to be illegal and violating the statutory reporting requirements would certainly be illegal my friend never said otherwise in his who did not understand whether the tax code applies to them and taxpayers who know that it doesn't know that applied to them but believe a provision is invalid that latter camp which is clearly where we fall is a willful violation of what subject us to criminal risks just close by saying this court frequently hears arguments from the government that don't worry we won't apply a criminal statute according to its tax but those types of arguments rarely succeed they've been rejected in cases like mar steve and others and it version of that argument from the government is particularly on satisfying because it took the government until the supreme court to make it never said that it wouldn't be a crime anywhere below and the government's argument now directly contradict sections