in its interpretation of sixty one or three each for b which will result in significant harm and which cannot be corrected on appeal as we've discussed in our brief there are two errors in the district court's analysis that i'd like to start off with and to discuss before turning to why mandamus relief is appropriate in this case first the district court in expanding sixty one of the three h four b to include a disclosure based on tax return information and secondly the district court erred by finding that the information here was directly related to the resolution of an issue in the proceeding as to the former the statutory language it i b is plain and clear it states that the disclosure is proper only if the treatment of an item reflected on such return is directly related to the resolution of an issue in the proceeding returns and return information are statutorily defined terms and encompass different information there are different categories of material return has a very discrete meaning yes your argument yes it does ok how about in sixty one or three b six and sixty one with three of the same thing they're right well in sixty one or three b six it deals with the tax payer identity right and tax payer identity actually is encompass than return information in the term is a term that we must humans precisely correct and i guess that question i have for you is that that term is also used in sixty one of three six and which you know defines taxpayer identity minute says it includes the name of a person with respect to who a return is fi so it's fair to say here that the plaintiffs in this case have not filed any returns correct right so this provision would not make their names return information correct i don't think that it would be their names would be return and information under be six and i think that under the broader definition of data collected the exact return information under ok then if that is true data collected would include the names of people who actually do file returns correct it could so why bother having be six i think that in that case b six is simply a clarification that taxpayer identity definitely applies to people who file returns that's that's the best argument you have it's i mean it's surplusage basically is what you're telling me well i think that that actually just goes to how broadly the term return information what the kind of broad category of information whether the name of an applicant is part of that well i think that it is part of the i mean it's definitely not overturned i would i think that we have to go back to that on a return it's not an item on a return so each for b which is the the operative provision would not apply so  six be seen to be somewhat repetitive and quite frankly stuck you sometimes are repetitive but i want to try not to read them that way indeed and i think and i'm just i'm kind of scratching my head as to why would we bother having the six if you know as seems so often to be the agency's argument data collected captures this as it seems to capture so much else well and again the judge i think a continue ok yes actually we're trying to figure out whether return information goes beyond something associated with a return but certainly don't know you can't give out the return except under a limited circumstances and so that you can't give out information related to a return right well actually it may go beyond that but but that's what's at the heart of this now we know there isn't any return these are all applications so then you go to data collected well actually judge i know would you mind if i stop you there or i want to look i'm sorry go ahead and just tell me why i'm wrong once i put a question mark at the end of the question ok sounds good to me so data collected along the discussion that you're having with judge catholic if i understand it right we looked at data collected and it says with respect to the determination of the existence or possible existence of tax liability in connection with these applications for tax exemption just is there not a return the name of those applications it also seems to me doesn't have a name to do with the existence or possible existence of tax liability so i'm trying to figure out why then the name on an application would be tack would be return information well judge i think that it does eventually go to the existence of tax liability whether these are tax exempt entities or not so they're applying for the status and i think that we have to remember when you're saying that the name on an application is collected to determine the existence or possible existence of tax liability at the phase when you haven't even acted on the application i think that that's one of the reasons you're collecting that information you're of eventually going to determine the tax liability and judge i just want to refocus the argument everyone agrees that this is return information well you know i mean you're here seeking extraordinary relief because parties adopt a particular interpretation of a federal statute does not mean we have to you know published opinion or any other opinion if we think it's wrong so this is something we do want to talk to you about because certainly i don't care that they haven't challenge this point that's why and that's why i'm going back to the beginning here why is this return information doesn't make sense that it is return information well again and whether everybody agreed to that or not just explain to us why it's return for me and what i would say is return information is a broad category remember sixty one hundred three is supposed to be default confidentiality for things you submit to the honor us they were to submit to the i r s things that are generated by the i r s is the name of the names of employees that are working somebody is file i mean we're ok and i mean that is exactly in there any taxpayer privacy interest whatsoever in the names of the iris employee has who are working on their file i do think that there is a generalized test their privacy in interest regarding all aspects of an investigation regarding that what is it actually get these foxholes why do they care if it's known that sally jones worked on their their application rather than john smith but i think that they care about all aspects of the investigation i think you don't have any specific reason why they would care about names of employees for example i think that they might care about how the investigation was conducted so yes i think that the name of the employee or the control that is like the i r s would care a lot more the i r s would care the i r s i mean i'll just be frank with you it seems to me that the i r s is the one with the interest to keep a lot of this stuff suppressed and this i mean this statute this provision was inactive after watergate watergate right and it's not an i r s protection statute right that's right it's a taxpayer protection statute rockton out i'll just be candid with you one overarching concern i have about your argument in this case and your argument in a lot of other cases that i've read getting ready for this case is that this data collected language in sixty one of three seems to be used by the i r s as a way of never having to hand over bad paper in a case brought by a taxpayer and given the reason why we have this statute that's troubling to me i understand your concern judge but what i would say that is that congress when passing this statute gave a very expansive definition for reason it's because congress was concerned about all aspects you're right things connected by are generated by the iraq this might seem to have more meaning to the iraqis than it does connection with the terminations that's necessary but but i understand i understand your point i'd like to ask you about sixty want to for sure sixty one zero four is i'm sure it's not mentioned in the briefs as sixty one three b six is not mentioned in the government's petition but sixty one zero four as you know makes applications for this sort of tax exempt status fully public information once they are granted and i guess the form ten twenty three at the top right says if exempt status is approved this application will be open to public inspection and the approval rate for these things is pretty high it's really north of ninety percent usually i think that's right so fair to say that some of the names at issue here relate to approved applications that's  those names now entirely of a public character are no go ahead they are of a public character and there are other ways to discover this the problem is they are of a public character why are we here at least as to those names well what i would say is because the rulings at issue went much broader than just give us the public now i mean you have some serious arguments about age four and you know they're going to hear about that but as to and tities whose applications were approved it i'm again just sort of stuck at the threshold question of well why are those names confidential when in fact any anybody can go to the i r s office in read the whole application and i think that that's that's right and just to give you up an update judge on what's happening the class has been certified as we've filed in the twenty j letter and those names of people who come within the class are being notified so if you know we're going to have a class here so it's the iris isn't hiding the ball as t names it's just saying the names cannot be discovered using the test the item test is very precise in what a lot of us but i mean why do we even get to the whole  analysis if the information is no longer confidential because the information is not just the name of the individual and that's not what the rulings that issue set the rulings went much further they what they had specific discovery regarding  lists your petition and i must say it's a very carefully were written briefs i can tell when a brief is being written very carefully the wording is very careful you say names and identifying information that's it that's the only putative confidentiality interest in front of us so you know that's speaking for myself that's all i'm going to consider with respect to this petition so again you say they're confidential but as to presumably most of them they're not confidential anymore and that's why i'm trying to figure out why this petition makes sense in light of that fact understand that fair to say you're less concerned about having to release names of entities whose applications were proved that's right but not as you as you noted judge not every entities applications approved in this process  sixty one zero four doesn't get you all the way better about sixty one ten which obviously relates to organizations i'm going to use the time for the person who didn't show up david  know as you know relates to applications that are denied and and those generally become public information except as i'm sure you know not the names like helpful to you but we have this but that provision does close the district court was some ability to release those names and it's a real thicket but one seems i guess sort of yes sixty one ten am says exclusive remedy except as otherwise provided in this title or with respect to a discovery order made in connection with the judicial proceeding secretary should not be required by any court to make any of the stuff available and i guess my question is well don't we have a discovery order entered by judge the law in a judicial proceeding well i think that that goes to kind of more generally the rinder determinations but i don't believe that it relates precisely to the releasing of names and other identifying materials and just to look back on one point or judge when you said that you wanted to consider only the names  identifying information i'd also note that when we talked about the usa today spreadsheet we didn't talk about the different categories in it but that was part of our brief and that actually goes much further than tax payer and identify information that's not an argument in your brief in my view anyway i mean i think you guys are very precise about what you say is protected objectionable under sixty one of three here well and if there's a lack of clarity in my my brief i apologize but when we when we talked about the orders we meant to i mean we describe the usa today spreadsheet you're putting your petition is going to speak for itself as far as i'm concerned i'm not looking for an embellishment here so just so that i understand where we are you're critical of the route the judge took here in connection with the names but you've conceded that the names have already been released all of them no we have not conceded the names with respect to the approved applications you said have been provided in connection with class certification no right now we're still in the class and notice phase so the names haven't been provided by members of the class are receiving notice and i believe there's a thirty five day period of us from whom notice from both parties the notices sent out by the  plaintiff that's right judge the law approved a specific procedure here where it was sent out and constructed in a different way but there's a thirty five day opt out period to that who is sending out who has the names in order to send out the notice that the united states has the names all right so you're you are notifying potential class members but you still of refused to turn that over that's right and they have the chance to opt out didn't you say however a moment ago that there was another route where they could have gotten those names well i was just saying that under sixty one zero four it's true that once an application is approved then that is public information that can be discoverable but they're never going to be able to connect the name i mean let's say just theoretically they go down to the i r s headquarters or wherever the stuff is and they start looking at approved applications they're not going to be able to know whether those applications were ones that were caught up in this be on the lookout business right in the us are members of the class actually what i would say was based on the how old the class was certified i think that that would in compass a lot because the class was sort of put there in title to all correct world there are actually no i don't think that sixty one  four gives you a mechanism where you can do that's what i'm saying is they're entitled to know who the members of their class are right and that's why we're going through the class notice right now ok but you're doing it right  say that your concern is the district court's construction of sixty one zero three h four b yet you go on to say there are other avenues at least with respect to approved applications where the names can be obtained i think that that's right why would we grant mandamus in connection with an order to turn over names that you're admitting can be obtained in another way or for precisely the same reason that the federal thirty is that you need to make sure that the different provisions are actually applied correctly so when the sixty one of the three provisions are abused or misinterpreted i get that but presumably the correct or incorrect application of sixty one of the three is is going to flow from the ultimate resolution of this lawsuit you want to do you want us to jump in in mandamus because you see started your argument out by saying there would be irreparable injury if this order is unforced yet you then admit that that information is otherwise available in another way well so i'm not saying that you should be foreclosed from  eventually winning or losing under sixty one or three i get that but i don't understand why we grant mandamus preventing them from something that you say they can get anyway well again just as long as they do it right judgment i don't think that they get all this information so no i  what my question was it was a while ago the question was the names of applications that were on the ball a list that have subsequently been approved because they seem to be available under sixty one  four and i thought you agreed with that and the application that's approved can be viewed and inspected by the public under sixty one for a why would we grant mandamus in connection with even if the district judge was wrong in connection with names that are related to a proof subsequently approved applications why would we grant mandamus because again the district court's order went on and that material and why do we correct that by a mandamus as opposed to letting that be corrected if i'm wrong throughout the normal course of the litigation if the information's available anyway judgement again sorry i was  confused as to the nature of your question so there are two different sixty one or three inquiries here ok but we're concerned about isn't the right now the underlying sixty one of the three trees were only concerned about the sixty one zero three each for b interpretation which will give all confidential information which this court has repeatedly said that you understand i'm only asking about names right now right and i'm only asking about names in connection with what then turned out to be successful applications which i'm gathering is the bulk of these applications right yes so even if judged a lot was wrong under h four b presumably you can get that corrected as the litigation unfolds right no i disagree judgement i'm not saying whether you can undo any harm that's created you can get the misinterpretation corrected later on in a case can you not again i do not think that you can and i don't have the right to appeal it or what well i think that this is one of those discovery disputes that i mean it's like the giving up of information under the attorney client privilege i guess you're right at a certain point in time you can correct the later on and if you don't worry about the harm but it's all in a row and i'm trying to figure out where is the harm here if the names that perhaps not properly under sixty one of three h four b can be obtained properly from the i r s simply using another section well in what i would sit judge but why are you then harmed if if it's of if it's publicly available now anyway the names of the the early entities that have been approved i agree are public so the little harm but but is that is the fact that you can't tie those hundreds of names that are that are related to  approved applications to who was on a bolo list at a particular time is that where you're saying there's a problem i think that there are as i said as i started off i think there are several problems i think they like the interpretation you want that change judgment at that later but that's you're really upset about that interpretation and you think there are some names that you don't have to cough up that's kind of what you're saying and other identify new information and quite frankly ok so again i mean i got it when you go from names to other down a flying information so you're saying there's other a den of flying information relating to those names that were that were obtained in connection with the application right in remembers very very briefly what is that as an addendum to the response there was how did the usa today spreadsheet itself where there are a number of different categories of information and plaintiffs would like vilified or not verified what's the most important thing other than the name that you're worried about trying to protect the control data i would i think that all of this is important what is able and what is the most important thing that you're trying to protect aside from the name i would say that world the comments the control the i think that all of it is important i mean you know if one wanted to be cynical we'd say the commons this isn't about names it's about cop it's that's what a cynic would say well i would say it's about protecting all of that information because that's what this is a system to identifying information control dates is just the date the thing is the applications follows it right or my wrong i think it's the date that the inspection began you might be right on and why is that so critical to rise to the level of mandamus the name once the name is out the names out you can't get it back i get that but who cares about control data in terms of rising to the extraordinary level of mandamus just give me a practical two sentence reason why that rises to the level of mandamus it rises to the level of mandamus because it's confidential information the third party taxpayers that's exactly what sixty one hundred three is designed to protect that's why it's mandamus that's why the federal circuit said this was what is it is along to the taxpayer in the sense that it isn't part of the application if it was part of the application i get that it's something you assigned to it but you have rights i think under sixty one hundred three us the taxpayer have the expectation of confidentiality of all of the inspection so it's not just i submit my application so i'm all good and we're done i approved is the document that then becomes available for inspection by the public is going to disclose when it was filed it will disclose when it was filed it won't disclose anything about the inspection although our little bit of murder it has been use me sorry just so part of the control information is also going to become public in connection with when the name becomes public if it's approved so there might be other stuff and judge points to comments so if there's a comm in there that says we should stall this taxpayer until after the election or we should stall this taxpayer application as long as possible that's not going to become public then later  and is that part of this mandamus petition or isn't it well i would say that it is because of the usa today spread sheets i've already spoken my mind on that subject let's say there information on the usa spreadsheet and that had a whole bunch of columns apparently name and control number therefore you say it's part of mandamus right well is that right yes so now i'm not sorry can i respond a little bit more on the emergent issues tab of the boat please produce the document titled albacete case tracking sheet and also the usa today spreadsheet so i do think that is a little fuller than than was just ad is what the judge ordered but you petition is narrower you said our objection is to that school ozer of names in other identities identifying information you say it twice you say very carefully you don't say all this other stuff that a is that other a den a flying information i would say so i mean why does the what is a control number meaning when it was filed or acted upon and a comment made about it why is that a den of flying information it is information i get that but it well i think it's identifying information because it discusses you know whether you're part of this allegedly didn't review so i mean aren't you taking the word identity in a den finding information in really extending it beyond any reasonable interpretation i don't think so judge seems to be identifying information is information that helps identify something but if the stuff that's spelled out in sixty one or three so if you've already got the name then why is this other stuff then even a done a flying information it is information but it doesn't seem to be of an a den of character if you see what i'm saying again judge to go back to my refrain that you probably are tired of hearing but it's important it's and it's the type of information that's protected because it's taxpayer return information they can't get it through the item to even though it's not on  especially because it's not on and i think i think we've probably beaten a real quick show in a different point i mean let's say there are a bunch of applications five at once occasions from progressive groups who are flag for frankly the same kind of treatment that the a g or the i g says happened in this case and let's say there's a spreadsheet there that in the comment section any any name any applicant whose name has some trigger words in the comment section it always says delay application until after next election boom boom boom all the way down the line iris puts it in there your is it the i r s is position in this case that in a similar class action where you have name plaintiffs and they're trying to identify all the people who are similarly treated that the i r s does not have to disclose to anybody the fact that it had these kinds of notations in a comment because that's data collected and for the sake of the taxpayers we are not going to let that bad paper come out is that the agencies know the agencies position is this judge you can't use h four b to get their ok the possibility of getting there is through each four and you get your class certified and at that point in time they have access to all their ok that's how they're they're trying to you know is judged a lot i think repeatedly with frustration said in this class or in this case she's there trying to conduct class discovery about who the class is that can matter in in a certification determination for sure and the parties in the district court are entitled to figure out who what who who is in the punitive class here and you guys are saying you don't get to find find out let's say the class is defined everyone who read this entry you know we had it and everyone else who got treated this way should be in the class and in your position would be no it's not relevant to anything you guys don't get know our position judges it's not directly related for purposes of the i didn't post and i think that the proceedings here are directly to illustrate that it wasn't i guess i guess what sort of fucked threshold point i'm going to which that the point i made earlier in it's what really troubles me about the agency's position in interpret ing sixty one of three for a long time is that you would say that that entry you know delay until after the next election is data collected by the secretary for purposes of a determination and therefore presumptively something the agency can keep secret that there isn't part of taxpayer return the name of taxpayer privacy gets to keep it secret understand like why those of us who are not in the agency would have some real concerns about that threshold position of course ok i understand that but knowledge should be coughed up here not through the item tass there are other mechanisms to do this as we've talked about a fair response maybe we should hear about h four from these folks give you a breather i really appreciate your patience you know your good nature throughout the questioning thank you so much i'm sorry i don't mean to run this david you took over a while ago i'm sorry four and then i'll get many questions on that before we do that is that while it's all fresh in our minds i have a couple of things i think would be helpful for the court to consider in terms of what it is we're we're litigating here attached to our one of our motion motions in the record as exhibit a is one of the spreadsheets it's document one fifty eight one page starts on page thirty four hundred and you know basically about it and as i read through the pleadings getting ready it occurred to us we need to go back to the spreadsheet itself because important point your honor is that the control date and many of these other columns had been it says in the conclusion now i'm gathering that there are items that were required by the district judge to be turned over on those two dates that have now subsequently been turned over know the district judge stated decision so that this court first so that the irish could decide whether to come to this court then after they did that they filed the petition and so it's been stayed continuously since that time let me put it another way have you gotten in by some means whatever they may be some of the information that you're seeking in these april and june discovery or no no you don't have any of that anywhere i could say we're look we're seeking t things number one we're seeking the names which is the only thing redacted but this spread sheet out he's saying that you can get those names in another way your honor he is much of that is correct there will be a way to get most if not all of these names i think we i don't think any of us can say today whether these other routes will get us all the names and one reason we wanted to come here and didn't suggest that it was moot is that we don't want to be back here after six or eight months of grinding merits discovery with the sixty one or three issues still unresolved this may be a naive question but have have you been contacted by the mediation people at the circuit to simply sit down with the i r s and say which things they will turn over to you because they know you're going to get it eventually anyway but well i can say to them yes or no the answer is no but i can say this that judged a lot  invested substantial time in this matter we had we had six of stanch will be confirming we were meeting it conferring on this issue over a year ago before we even went through all of our discovery procedures there was a motion to reconsider much time has been has been devoted to this at the district court level and so frankly i don't i don't know that that mediation would at this level would help much but i want to focus on this issue your honor the much of this information is in our hands that control day is in our hands those dates are really important actually because then we can see you know how but at what rate were people being filtered into this we believe that as we take each one of these tracking spreadsheets it'll be sort of a a snapshot of the way this class group so if you have the control dates are they matched up with names or is that what's redacted that's what's redacted except for the original name plaintiffs those are and read acted and there's the other important thing is there are two tests involved here this is all about the item test today can you give us a page i d number or before us and i do have copies here i did not want to come in to hand out copies of something that right i don't want to copy i just want the page of the page number is thirty four hundred that's in there that's in the record below in the record below document one fifty one of those thirty four hundred and that's the only such broad sheet that you have in your possession you know i want to say we may have other spreadsheets with redactions but this is this was the latest one this is the biggest one  interrupted the other you know exhibit c which we filed here is the usa today spread sheet and i think you all have seen that it's a different kind of spreadsheet and it was prepared by different purpose person for a certain purpose midway through the targeting process at any rate these two different test play here and it's really important to understand why we're going to get other information through that test or through sixty one o four as the court pointed out and as we did not brief just out of curiosity are you at liberty to say would you get this political case tracking sheet that's thirty four hundred well the iris produced that to us and discovery with reactions so you so actually they've they've been willing to give you all of this taxpayer dental for patient stuff just not just not a tribute to a particular taxpayer except for or excuse me particular applicant they're not taxpayers that's right that's right although i want to return to that point your honor to do it in just a moment because i know we know we've got to get to age four but i i want to point out how we're going to get the names and what names those will cover so there's an important point that we've we've skipped over and that's that the party test which is for h four eighty also applies here and under that test after the class opt out period ends we're going to get the petition a lot of this a lot of these horses are going to go out of the barn and you know due course or so so there is that issue your honor let me pursue that because i'm not sure i understand that either what was the end of the opt out period it'll be thirty five days after notice goes out and notice will be going out pretty quickly here we had our meeting on thursday actually was judged a lot too so just to use a hypothetical if for some reason that it took us sixty days to get this order you're saying that a lot of this would be moot by the time we issued the order to the corresponding information on the spreadsheet we believe we'll get new copies of the spreadsheets with those names uncovered oh i see but here's the important point and we're going to get the application files but here's the important point i'm just again i'm back to not i'm not suggesting that we should wait sixty days or something like that or that we should an issue a ruling i'm just trying to figure out whether this rises to the level of mandamus which essentially is based upon the irises promise that this is confidential information in the world as the i r s knows it is going to end if we don't set aside this discovery order when you're suggesting the vast majority of this is going to vailable in forty five days anyway well i'm just trying to figure out how that fits to mandamus and i have a couple responses to that first of all something nobody has talked about is well i guess the court has talked about it is the standard here you know is this the kind of issue we should raise in mandamus but the other issue is you know this is a gesture and that the i r s is sort of guarding the henhouse here and that we're we're the wolf trying to get in i think is incorrect we're the ones trying to get damp recover damages for these groups and there's that this will be disclosed to the public at large we have offered before the district court to do something like entering a protective order i mean there's no reason why people that fall within the item test but not the party test couldn't have codes assigned to them so that when we make filings or have trial that we can just we can't use those codes granted we'll know and so the i r s might say as soon as plain as counsel knows the this privacy injury is well right here they would have a point there they are restrictions on even who inside the government can look at stuff that's right you know but the purpose of our knowledge your honor would be to actually gain get damaged those groups but  here's the other issue there are still going to be in all probability there will still be lines redacted and here's why as as you learned i think and the previous discussion we did we don't see the list that notices going out to and the reason is because of this argument we did not want to fight about the you know the want to get it going we want to get it going and so we should have an order which we hope to file by twenty a j letter we wanted to file it before today but the still there's back and forth with us in the government about the contents of this order where the judge will say this is important to the merits and you know we believe and we hope the order will say this although the government doesn't agree and it's important to identify who is in the class so i mean clarification of some of the issues sixty one of three issues we're talking about is important going forward in the case for multiple reasons it is it is and you know the other thing i'd point out though there's two other way there's another way that i think we would get information here and so this is it requires assuming several things about what the definitions in the statute mean but in fact some of these groups are supposed to have been well frankly anybody who still active should be filing a return they should be filing a form ninety every year right and that's that might even be while you're waiting to have your form ten twenty three or four to twenty four granted language whatever says a return or return information made may be disclosed in a judicial proceeding but only and i guess we're dealing with be here if the treatment of an item reflected on such return is directly related to the resolution of the proceeding says return it doesn't say return information and i'm kind of on your side of the ledger here i'm scratching my head about why this would authorize release of a different category of information namely return information of a return we have to response to that first of all just sixty one zero three is sort of a catch all statute applies to many different kinds of tax payers and many different types of activities and you know many different things are called the return unfortunately not the form ninety that people file or i'm sorry not the ten twenty three that's called an application so we do could rely on that the problem is sixty one of the three in some areas and i i hate to ever say this but it's a little rough around the edges and the example i can use particularly for n b c when you read those two together they don't actually make sense when you read the sentence together there would have been a way to well how about yeah well that's only if you a law had a c and d i mean you know if we want to be grammatical here for itself is there colon's after the subsections the entire thing is a sentence not just be right and the entire thing would make sense because there are plenty of references to return information in the other  subsection such as c so that sentence not making sense unless i'm missing something doesn't seem to be valid but your honor i think the way to have it make sense would have if we're going to be going to grammar i think would have been to take away the dash and put in a colon and  then within b make clear that ashkelon doesn't matter ok well to call well whatever we do you could then go back and you could reform be to make sure that that this is you're not missing one of the two conditions that are necessary to answer what the beginning language sets out and so an example might be if you tell your kids you can have a dairy product or yogurt for lunch but only if such yogurt is strawberry if you get if you give in that they'll stop and think for a second and they'll say well wait a second does that mean i really can't have a dairy product for lunch and that it does if you say you can have a dairy product or yogurt for launch so long as the dairy product is chocolate milk or such yogurt strawberry i think they'd understand that they could have chocolate milk but not strawberry chocolate milk i agree with  that that the chocolate yogurt let me try to parallel might i agree with i just you both think you're clearing this up with no but that's why i want to go to the second point i'm also getting hungry but the second point is this  you know the iris itself has has recognized this problem which is why we have the chief counsel memo telling attorneys and telling agents that when you've got exams and exams are administrative proceedings under age four you can use the extrinsic documents that are not the return they are a long way from being interested in their chief counsel memos and for purposes of reading a statute which is kind of what we do all day long up here and each for i mean i guess let me put it just directly to you it seems like the prefatory language that you're relying so much on defines the scope of subsection for the overall scope and it says these two things return return information can be disclosed in a judicial proceeding only if and then we have four different conditions and some of them describe conditions where apparently congress thought those conditions warrant the disclosure of both returns and return information but it would seem like in be congress thought that those particular circumstances warrant disclosure only of returns and that's just seems like a very strong i mean the government's argument seems very straightforward that seems like a very straightforward reading i'm not seeing any grammatical problem i'm not seeing any surplusage problem i'm really not seeing any problem and so what is the problem with saying yeah it says some of these provisions so in these circumstances you disclose both some you disclose one why is it that congress is prague well i think the problem is that there are other problems here as well for reasonable well i the problem is and i i think i think it's a it's a back and forth on whether it's ungrammatical the problem is that we're missing the guidance and be about when you can use return information that  well for that particular circumstances you don't get to disclose return information and congress is telling right well but our response is that the agency that's charged with interpret in this intel this case actually tells its people no you can use return information to chevron one but we could be at skidmore we could be using skidmore deference here we don't go anywhere and last and i guess anyway i mean forget about what the agencies saying i'm just not seeing a problem and asking substantive that you're kind of given some thoughts that that's that's the best answer we can give the only other thing i'd say is that let me ask you a related question that now you're going to really think is off the wall just occurred to me in listening to you let's assume for just a second that age for b is read the way you want it to read and also permits disclosure of return information that's what you and judge been talking about even if you assume that what is the what would the significance do we attribute to the language about reflected on a return does the word on make a difference here i understand from the government standpoint there may be a lot of things that are captured within the phrase return information all this other stuff like the control number for example but that's not on the that's not on the return somebody filed and i'm guessing it's probably not in many instances written on there by some scr the street in the back building either that's right but i would say this of his that matter well what i think what matters i frankly i think the entire phrase treatment of an item reflects on such return i mean does a lot of things behind the scenes and that may well or not be returned information that i get but if we're just looking at narrowly h fo b all this other stuff that the i r s is seemingly most concerned about is not actually on the return as well it's it's not so then if we're reading that literally how does how do you get disclosure of something under age four be under the district court order that's not on the read on the application or on the return well that's the problem and that's why we're arguing the item test today that's probably means you've got to go someplace else to get it going to go to the party test but here's why i can't leave this unsaid it's important to note your honor that many of these entities have filed returns maybe even during the application process and you know if we're going to be limited to the word return that does not mean the names are out because the very first item on a return is the name in the is chosen for itself that's the very first thing you put on there and that's what you represent to the i r s but if your name notice goes out that's right and so they can waive any of this privacy stuff well your honor once they're once they're parties under the party test it's not an issue the worry here is we don't know who is even getting the notice so we're going to get this list of people who will want will wonder did the right people get it but you've apparently acquiesced to that well to get things we get things going but we want to be able to look back and say ok we know that this is a tea party group in columbus ohio  want to get more information about those who do not well those who spile we don't half we'd like to confirm the class notices went out that's what we believe we have a duty to do that ok i got it and then else we're way for a time but it's not your but you asked me as well does this rise to the level of mandamus i just return to the fact that this court has stated that where where the district court orders raise new and important problems or issues of of first impression that's that's one of the five factors and that's certainly here and we've been talking about that the opt out period we're protecting the confidentiality of those who opt out those are the tax payers that are possibly affected so does this rise to the level of mandamus we believe it does this is an incorrect interpretation of a very important confidentiality provision that will have a real world impact on those that opt out and quite frankly presents a new issue of along this court although the federal circuit has already firmly explained why the government's interpretation on the statute is correct  recork let's set aside the merits of this petition let's set aside your age for argument and that's a very serious argument and this is not directed at you personally because your name appears you know on the location for the first time but i mean i've actually gone back and read the hearing transcripts or the discovery in this case i've read the correspondence you know i was involved in discovery fights a lot as counsel frankly that was the most miserable part of the job was dealing with somebody who's being on reasonable and discovery you're in a state of nature with these people and nobody wants to have to run to the judge and it's just a difficult process and i actually really look forward to having the united states and the other side because normally i don't get that kind of stuff that said i think they've been getting that kind of stuff in this case as an example this october third two thousand and fourteen letter from mr  grime you know about disclosing the name the employees who worked on these files i think it's kind of tendentious to say that that's return information i understand your argument it's a coherent argument but then then the letter goes on to say well you know sixty one zero four would make everything public including the names of the employees who worked on the applications but it's unduly burdensome for us to dig those up and i must say i mean for the i r s in this case of  all cases where the inspector general has said these people including these named plaintiffs were forced to cough up this so called additional information three thousand pages in their kids were forced to cough that up what kind of obliviousness would allow the agency to say it's too burdensome for us to sort out who actually made them do that it's not directed towards you but if it were me the district judge reading this which she's been put through rule thirty seven would have been used long before this and i would just hope that if and when we see this case again it doesn't have this sort of what appears to be studied obstructionism by the agency  simply say i understand your position try to do better that's good that would be very prudent on your part and i think the court is right message you know mr heard it's really not for you the message but the message has been written that said i mean i genuinely appreciate the manner in which you handled yourself in you know in a challenging our thank you judge thanks all right very interesting case obviously the matter will be submitted we have one more case to argue