refund statute twenty eight u s c section thirteen forty six a what our position is supporting our briefs is that under any reasonable interpretation out exactly functions and how those laws interplay with each other of their revenue code on the other here's my response the government imposed the payment on us the contribution under the train just retort if you can and i'll get to that point sure if you  test for constitutional purposes but statutory purposes sprint worst decision they have been short if the what they said what they said and i don't think we're at liberty to disregard it well i think respect for three or four script purposes not might be true but when if we have a payment and exaction that you can interpret and use that task and it turns out that it's a tax and i don't think there's any reasonable interpretation of papers i understand you want to have a jurisdictional principles that make it easy to follow for the courts to apply but there has to be balanced against our rights just as taxpayers and people were forced to make his contribution under the act are different proofs it's entirely good and we're the litigant we're the plaintiff we chose our form of system with the statute we would present this in a much cleaner and straightforward way as tax people would understand that was then we wouldn't be here and we would have moved to the port of claims to bring that claim under thirty forty six sony or twenty two both of those statues in a word restricted to recoveries of an internal revenue tax really weird ideas why is what you hear here an internal revenue tax because it's it's money that is raised by the government per unit you neary burden for public that's exactly what they say and they cite the government's brief where the government outlines the difference and the government wrote enact a state internal revenue means revenue that's generated within the united states and it doesn't say anywhere that they are generated taxes shouldn't be limited in our ability to use a tax refund statute and exhaustion are meant while very important is especially important for total twenty six taxes because we did a lot of research over the last two weeks territories it gives a broader rights to taxpayers and at any rate in any event if you find this narrow you know structure of what the tax reform statute is your search would say there can't be taxes in different places the fact that they were both enacted in the same one nine hundred twenty one act i think leads one to the conclusion that the same terms do in fact mean the same thing you know there is this normal presumption that when the same terms are  in the same act albeit in different sections of the act they mean the same thing and there's nothing in that nine hundred twenty one new actor and or anything there after that suggests that congress meant different things and so i think you do you have to read section thirteen forty six a one as part of this comprehensive scheme that congress developed for taxpayers to challenge taxes under the internal revenue i think that you know there are a couple of other things that i'd like to just touch on if i  that doesn't apply when we're dealing with a jurisdictional statute i think the supreme court was very clear enough i'd be excuse me that when you're dealing with congress's constitutional authority you do look at the function of the next action because congress cannot expand its authority under the constitution just by calling something one thing or says another but when you're dealing with something like the affordable care act and jurisdictional statutes that are creatures of of congress's own creation then the label that congress does apply the label that congress applies does matter and that's what we look at and i think you know one other point you know plaintiff's counsel has has emphasized that you know if you accept our interpretation in the adopted that it would limit their ability to bring suit in district court but it's important to take a step back here what they're really challenging is a will that h h s issued that defined a contributing entity for purposes of this transitional reinsurance program it was a gauge to notice and comment rule making of which plaintiffs participated and submitted comments and the normal way that you challenge a rule like that is through an a p a action and district court plaintiff didn't do that they could have brought an action before they made before they made any payments and said to set and sought to set aside the rule as applied to them and join any collection of them but they didn't do that they waited and they went ahead and made the payment and now they're seeking to invoke the jurisdiction under the tax refund statute which simply doesn't apply if the panel has any questions i'd be happy to answer  i'll be brief your honor one of the points i want to respond to is counsel's final point that we chose to pay this payment rather than challenge it cream foresman this payment was required by congress to stabilize our insurance work you look at everything that surrounded the transitional reinsurance program the language was we need to avoid we need to avoid crashing the health insurance market you know adverse selection could result in health insurance premiums rising so dramatically that insurers will walk out of the marketplace nothing in the way congress spoke about th or their decision to make require these contributions suggested we could withhold heman and then challenge it preemptively in fact everything suggested that this was important and remember that was for three years after the passage of the affordable care act so for the first three years we didn't pay it and all tax payers withheld their money it would have been able to accomplish triple stabilizing the shorts this was an integral part of what they were trying to do  did it quickly they needed to as i said they needed to stabilize the premium market from adverse selection and other factors and they made us pay it in there was no suggestion it any point and we can withhold this and the government makes that statement  as for the comprehensive scheme i understand that argument i understand the link between seventy four twenty two and thirteen forty six but again and if you look at other cases like there is a supreme court case united states versus new york