RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0219p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CIC SERVICES, LLC,

Plaintiff-Appellant,

v.

INTERNAL REVENUE SERVICE; DEPARTMENT OF 

TREASURY; UNITED STATES OF AMERICA,

Defendants-Appellees.

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No. 18-5019

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 3:17-cv-00110—Travis R. McDonough, District Judge.

Argued: October 19, 2018

Decided and Filed: August 28, 2019

Before: SUHRHEINRICH, CLAY, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC AND REPLY: Adam R. Webber, ELLIOTT, 

FAULKNER & WEBBER, Beavercreek, Ohio, Cameron T. Norris, CONSOVOY MCCARTHY 

PLLC, Arlington, Virginia, for Appellant. ON RESPONSE: Teresa E. McLaughlin, Bethany B. 

Hauser, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. 

ON BRIEF: John J. Vecchione, CAUSE OF ACTION INSTITUTE, Washington, D.C., Kristin 

E. Hickman, UNIVERSITY OF MINNESOTA LAW SCHOOL, Minneapolis, Minnesota, for 

Amici Curiae.

The panel issued an order denying the petition for rehearing en banc. CLAY, J. (pp. 3–5), 

delivered a separate opinion concurring in the denial of rehearing en banc. SUTTON, J.

(pp. 6–7), delivered a separate opinion concurring in the denial of rehearing en banc. THAPAR, 

J. (pp. 8–13), delivered a separate opinion dissenting from the denial of rehearing en banc, in which 

KETHLEDGE, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, JJ., joined.

>
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 2

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel reviewed the 

petition and concludes that the issues raised in the petition were fully considered upon the original 

submission and decision. The petition was then circulated to the full court. Less than a majority 

of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 3

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CONCURRENCE IN THE DENIAL OF REHEARING EN BANC

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CLAY, Circuit Judge, concurring in the denial of rehearing en banc. In their latest attempt 

to inflict death by distorted originalism on the modern administrative state, some of my colleagues 

would have this Court directly contravene the Anti-Injunction Act (the “AIA”), which provides 

that “no suit for the purpose of restraining the assessment or collection of any tax shall be 

maintained in any court by any person.” 26 U.S.C. § 7421(a). Specifically, my colleagues would 

allow plaintiffs seeking to preemptively challenge regulatory taxes to evade the AIA simply by 

purporting to challenge only the regulatory aspect of the regulatory tax. Yet “[t]he Supreme Court 

has consistently ruled” that the AIA “cannot be sidestepped by such nifty wordplay.” Fla. Bankers 

Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065, 1070 (D.C. Cir. 2015); see, e.g., Nat’l Fed’n 

of Indep. Bus. v. Sebelius, 567 U.S. 519, 543 (2012); Alexander v. “Americans United” Inc., 

416 U.S. 752, 761 (1974); Bob Jones Univ. v. Simon, 416 U.S. 725, 732 (1974); Bailey v. George, 

259 U.S. 16, 19–20 (1922). To hold otherwise “would reduce the [AIA] to dust in the context of 

challenges to regulatory taxes.” Fla. Bankers, 799 F.3d at 1070. 

Of course, that is precisely the result that my colleagues crave. They chide the IRS for its 

“regulat[ion] [of] an ever-expanding sphere of everyday life” and decry that it is exercising its 

powers “in ways the Founders never would have envisioned.” But such complaints were not 

persuasive when the original panel considered this case, were not persuasive when the full court 

considered the petition for rehearing en banc, and are not persuasive now. “[I]t is no answer to the 

growth of agencies” for federal courts to renounce the rules by which they have long abided, 

particularly where those rules have been clearly articulated by both Congress and the Supreme 

Court. Kisor v. Wilkie, 139 S. Ct. 2400, 2423 (2019).

A suit seeking to preemptively challenge the regulatory aspect of a regulatory tax 

“necessarily” also seeks to preemptively challenge the tax aspect of a regulatory tax because 

invalidating the former would necessarily also invalidate the latter. Bob Jones Univ., 416 U.S. at 

731; see also NFIB, 567 U.S. at 543 (“The present challenge to the mandate thus seeks to restrain 

the penalty’s future collection.” (emphasis added)). Otherwise, a taxpayer could simply 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 4

“characterize” a challenge to a regulatory tax as a challenge to only the regulatory aspect of the 

tax and thereby evade the AIA. Fla. Bankers, 799 F.3d at 1071. And “as the Supreme Court has

explained time and again . . . the [AIA] is more than a pleading exercise.” Id.; see also RYO 

Machine, LLC v. U.S. Dep’t of Treasury, 696 F.3d 467, 471 (6th Cir. 2012) (“Regardless of how 

the claim is labeled, the effect of an injunction here is to interfere with the assessment or collection 

of a tax. The plaintiff is not free to define the relief it seeks in terms permitted by the [AIA] while 

ignoring the ultimate deleterious effect such relief would have on the Government’s taxing 

ability.” (quotation omitted)).

Against this wealth of precedent, my colleagues raise no new arguments sounding in either 

statutory text or caselaw. As the majority opinion in this case makes clear, Direct Mktg. Ass’n v. 

Brohl, 135 S. Ct. 1124 (2015), Autocam Corp. v. Sebelius, 730 F.3d 618, 622 (6th Cir. 2013), 

vacated on other grounds by Autocam Corp. v. Burwell, 573 U.S. 956 (2014), Korte v. Sebelius, 

735 F.3d 654, 669–70 (7th Cir. 2013), and Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 

1126–27 (10th Cir. 2013), are all largely inapposite. None of those cases involved a regulation 

enforced by a tax-penalty located in Subchapter 68B of the Internal Revenue Code. Where, as 

here, the regulation at issue is enforced by a tax-penalty located in Subchapter 68B of the Internal 

Revenue Code, that tax-penalty becomes the relevant tax for the AIA analysis, as opposed to any 

third-party taxes the collection of which the regulation is designed to facilitate. NFIB, 567 U.S. at 

544; Fla. Bankers, 799 F.3d at 1068. And Plaintiff’s suit plainly seeks to “restrain[] (indeed 

eliminat[e]) the assessment and collection of that tax.” Fla. Bankers, 799 F.3d at 1068; see also 

NFIB, 567 U.S. at 544. In contrast, Autocam, Korte, and Hobby Lobby all involved the Affordable 

Care Act’s contraceptive mandate, which was a separate provision of the U.S. Code structured not 

as a predicate to the imposition of a tax, but as a mandate enforceable by a variety of different 

mechanisms.

Rather, in an instance of textbook judicial activism, my colleagues instead attempt to raise 

a plethora of policy concerns. Indeed, reading the dissent, one might be left with the mistaken 

impression that “policy concerns, rather than traditional tools of statutory construction, are shaping 

the judicial interpretation of statutes.” Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S 81, 

109 (2007) (Scalia, J., dissenting). Not so. As my colleagues well know, having admonished the 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 5

IRS on the same grounds, “courts are[] [not] free to rewrite clear statutes under the banner of our 

own policy concerns.” Azar v. Allina Health Servs., 139 S. Ct. 1804, 1815 (2019). Regardless, 

none of the policy concerns that the dissent raises are persuasive. 

For instance, my colleagues evoke the prospect of righteous individuals forced to “bet the 

farm” or “risk prison time” in order to challenge regulatory taxes imposed by a purportedly 

illegitimate administrative state. Yet the Supreme Court has made clear that the AIA creates an 

exception to the general administrative law principle in favor of pre-enforcement judicial review, 

and that it applies even in the gravest of circumstances, such as the violation of individuals’ 

constitutional rights. See, e.g., United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 10 (2008) 

(“[T]he taxpayer must succumb [even] to an unconstitutional tax, and seek recourse only after it 

has been unlawfully exacted.”). If and when Congress has a change of heart, it remains free to 

amend the AIA as it sees fit.

My colleagues also opine about a supposed “elephant in the room”—the fact that “the IRS 

(an executive agency) exercises the power to tax and destroy, in ways the Founders never would 

have envisioned.” Yet the Founders’ expectations about how Congress would wield the power 

bestowed on it by the Constitution are entirely irrelevant to the case before this Court. This is a 

case about statutory interpretation, not about the constitutionality of the so-called administrative 

state, or even the constitutionality of the AIA. My colleagues thus misstep in letting their hostility 

toward the IRS, rather than traditional tools of statutory construction, guide their analysis. 

Apparently, it is no cause for doubt or self-reflection by my dissenting colleagues that no one else, 

including the parties litigating this case, can see the elephant.

At bottom, my colleagues raise no arguments that justify this Court’s departure from settled 

Supreme Court precedent regarding the AIA. Accordingly, I respectfully concur in the denial of 

rehearing en banc.
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 6

_______________________________________________________________

CONCURRENCE IN THE DENIAL OF REHEARING EN BANC

_______________________________________________________________

SUTTON, Circuit Judge, concurring in the denial of rehearing en banc. Three crosscurrents affect the resolution of this en banc petition. 

One is that the dissenting opinion by Judge Nalbandian seems to be right as an original 

matter. I doubt that the words of the Anti-Injunction Act—that “no suit for the purpose of 

restraining the assessment or collection of any tax shall be maintained in any court by any 

person”—ban all prospective relief whenever the IRS enforces a regulation with a penalty that it 

chooses to call a “tax.” 26 U.S.C. § 7421. And I especially doubt that conclusion in this setting—

where the taxpayer’s only remedy is not to “pay first challenge later” but to “report to prison first 

challenge later.” As today’s case appears to confirm, the meaning of the Anti-Injunction Act has 

crossed the bar from its port of birth. See Lipke v. Lederer, 259 U.S. 557, 562 (1922) (holding that 

the Anti-Injunction Act does not apply to a suit to enjoin enforcement of a penalty Congress called 

a “tax”). One explanation for this drift may be the historic linkage between the meaning of the 

Anti-Injunction Act and the Tax Injunction Act, 28 U.S.C. § 1341. See Direct Mktg. Ass’n v. 

Brohl, 135 S. Ct. 1124, 1129 (2015). Keep in mind that, while the Anti-Injunction Act ensures 

that the IRS can perform its revenue-collecting tasks without undue interference by federal 

taxpayers, the Tax Injunction Act protects a different sovereign’s interests—“to limit drastically 

federal district court jurisdiction to interfere with so important a local concern as the collection of 

taxes” by the States. Rosewell v. Lasalle Nat’l Bank, 450 U.S. 503, 522 (1981). To respect the 

federal taxpayer’s procedural concerns today thus might slight the State’s sovereign concerns 

tomorrow, creating the risk that too much haste in stopping one abuse of power might open the 

door to another.

A second reality is that this case does not come to us on a fresh slate. Whatever we might 

do with the issue as an original matter is not the key question. As second-tier judges in a threetier court system, our task is to figure out what the Supreme Court’s precedents mean in this setting. 

That is not easy because none of the Court’s precedents is precisely on point and because language 

from these one-off decisions leans in different directions. A little caution thus is in order when it 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 7

comes to judging the efforts of our colleagues on this court and on the D.C. Circuit to sort this out. 

See Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065, 1068–70 (D.C. Cir. 2015) 

(Kavanaugh, J.). Neither of the two court of appeals decisions—neither ours nor the D.C. 

Circuit’s—purports to answer this question as an original matter. And reading between the lines 

of Supreme Court decisions is a tricky business—hard enough with a panel of three lower-court 

judges, utterly daunting with a slate of sixteen lower-court judges.

The last consideration is that we are not alone. The key complexity in this case—how to 

interpret Supreme Court decisions interpreting the statute—poses fewer difficulties for the 

Supreme Court than it does for us. In a dispute in which the Court’s decisions plausibly point in 

opposite directions, it’s worth asking what value we would add to the mix by en-bancing the case 

in order to create the very thing that generally prompts more review: a circuit split. As is, we have 

Judge Thapar’s dissental and Judge Nalbandian’s dissent at the panel stage on one side and Judge 

Clay’s opinion for the court on the other. These three opinions together with then-Judge 

Kavanaugh’s opinion say all there is to say about the issue from a lower court judge’s perspective. 

All of this leaves the Supreme Court in a well-informed position to resolve the point by action or 

inaction—either by granting review and reversing or by leaving the circuit court decisions in place.
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 8

_______________________________________________________________

DISSENT FROM THE DENIAL OF REHEARING EN BANC

_______________________________________________________________

THAPAR, Circuit Judge, dissenting from the denial of rehearing en banc. In this country, 

people should not have to risk prison time in order to challenge the lawfulness of government 

action. In this circuit, they now do. Because the law does not condone—let alone require—that 

result, I respectfully dissent from the denial of rehearing en banc.

Although the details at first may seem technical, this is a straightforward case. In 2016, 

the IRS issued so-called guidance requiring taxpayers and their advisers to report certain 

information to the agency. Failure to do so can result in significant civil penalties. 26 U.S.C. 

§§ 6707–6708. And a willful violation can result in criminal penalties, including imprisonment. 

Id. § 7203. Less than a year later, CIC Services sued the IRS, alleging that the agency had issued 

its guidance unlawfully. The question here is whether the Anti-Injunction Act, which provides 

that “no suit for the purpose of restraining the assessment or collection of any tax shall be 

maintained in any court by any person,” applies to that suit. Id. § 7421(a).

The Supreme Court, this circuit, and other circuits have all told us that the answer to that 

question is no. Take the Supreme Court. Recently, it interpreted the Tax Injunction Act, which 

generally uses words “in the same way” as the Anti-Injunction Act. Direct Mktg. Ass’n v. Brohl, 

135 S. Ct. 1124, 1129 (2015). That case had two holdings. First, the Court held that the terms 

“assessment” and “collection”—used in both Acts—do not refer to reporting requirements. 

Rather, such “information gathering” is distinct from and occurs before these other stages of the 

taxation process. Id. at 1129–31. Second, the Court held that the term “restrain”—also used in 

both Acts—means to “prohibit” or “stop.” Id. at 1132 (internal quotation marks omitted). It did 

so because the term “‘restrain’ acts on a carefully selected list of technical terms” (e.g., 

“assessment” and “collection”), not “an all-encompassing term, like ‘taxation.’” Id. To adopt a 

broader definition, the Court explained, would “defeat the precision of that list, as virtually any 

court action related to any phase of taxation” could “inhibit” tax collection. Id. And the narrower 

definition appropriately reflected the term’s “meaning in equity.” Id. From these twin holdings, 

the Court easily concluded that a suit to enjoin a state law that required retailers to report certain 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 9

information to the state revenue service could not “be understood to ‘restrain’ the 

‘assessment’ . . . or collection’” of a tax. Id. at 1133.

That conclusion nearly resolves this case. CIC filed its lawsuit to enjoin IRS “guidance” 

that required the company to report certain information to the agency. The company claimed that 

it would have to devote hundreds of hours of labor and tens of thousands of dollars to comply with 

that requirement. And for no good reason, the company said, because the IRS had issued its 

guidance in violation of the Administrative Procedure Act and the Congressional Review Act. See 

5 U.S.C. §§ 553, 706, 801. Per the Supreme Court’s direction, that suit cannot be understood to 

“restrain[] the assessment or collection” of a tax just because it might inhibit the agency’s future 

collection efforts. 26 U.S.C. § 7421(a); Direct Mktg., 135 S. Ct. at 1133. 

This case, however, does pose one additional wrinkle. Congress has prescribed civil 

penalties for failing to comply with certain IRS regulations and has apparently decided that these 

penalties should count as “taxes” for purposes of the Anti-Injunction Act. See 26 U.S.C. § 6671(a); 

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544–45 (2012). But that fact changes little. 

The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or 

collection” of a tax. 26 U.S.C. § 7421(a). And here the suit seeks to enjoin the underlying 

reporting requirement, not the penalties. Nor has the IRS otherwise shown that CIC has the 

“purpose” of restraining these penalties. The company complains about the costs of complying 

with the reporting requirement, not the potential penalties for failing to do so. Indeed, CIC 

currently has no “tax” liability under this regulatory regime and may never incur any such liability. 

Simply put, this is not a case about taxes. CIC Servs., LLC v. IRS, 925 F.3d 247, 259 (6th Cir. 

2019) (Nalbandian, J., dissenting). 

Our circuit has reached the same conclusion in a nearly identical case. Specifically, we 

held that the Anti-Injunction Act did not apply to a lawsuit challenging the Affordable Care Act’s 

contraceptive mandate, even though employers would have to pay a “tax” if they violated the 

mandate. See Autocam Corp. v. Sebelius, 730 F.3d 618, 621–22 (6th Cir. 2013), vacated on other 

grounds sub nom. Autocam Corp. v. Burwell, 573 U.S. 956 (2014). Our decision reasoned that the 

suit was “not intended to ‘restrain[]’ the IRS’s efforts to ‘assess[] or collect[]’ taxes”; rather, it 

sought only to enjoin the underlying mandate. Id. at 622 (alterations in original). Although the 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 10

Supreme Court later vacated that decision, it did so on other grounds. So the decision continues 

to be entitled to (at the very least) persuasive weight. And there was no good reason to disturb it 

here. Cf. United States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006); Christianson v. Colt 

Indus. Operating Corp., 870 F.2d 1292, 1298 (7th Cir. 1989).

Our circuit was not alone in its conclusion. Two other circuits have reached the same result 

using the same reasoning. See Korte v. Sebelius, 735 F.3d 654, 669–70 (7th Cir. 2013); Hobby 

Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126–27 (10th Cir. 2013) (en banc). And another 

applied the same reasoning to a similar case. See Seven-Sky v. Holder, 661 F.3d 1, 8–10 (D.C. Cir. 

2011), abrogated on other grounds by NFIB, 567 U.S. 519. 

Finally, these decisions just make sense. After all, the Supreme Court has long presumed 

that parties may challenge agency action before they suffer any harm. See, e.g., U.S. Army Corps 

of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815–16 (2016); Abbott Labs. v. Gardner, 387 U.S. 

136, 139–41, 152–53 (1967); United States v. Nourse, 34 U.S. 8, 28–29 (1835) (Marshall, C.J.). 

True, the Anti-Injunction Act creates a narrow exception to that rule. Yet the IRS’s interpretation 

would not just broaden that exception but blast it wide open. In recent years, the agency has begun 

to regulate an ever-expanding sphere of everyday life—from childcare and charity to healthcare 

and the environment. That might be okay if the IRS followed basic rules of administrative law. 

But it doesn’t. See Kristin E. Hickman & Gerald Kerska, Restoring the Lost Anti-Injunction Act, 

103 Va. L. Rev. 1683, 1685, 1712–20 (2017). So with great power comes little accountability.

Even so, one might think, the IRS’s interpretation would still allow people to bring a 

challenge after they violate the reporting requirement and pay the penalty. True enough. But only 

if people are also willing to spend up to a year in prison. See 26 U.S.C. § 7203. In effect, these 

criminal sanctions make the reporting requirement in this case (and many others) unreviewable. 

The IRS responds that “[it] is not clear” whether the government would criminally prosecute 

someone “who demonstrates a good-faith intent to submit its challenge for judicial resolution.” 

IRS En Banc Br. at 8. But that has never been a “sufficient answer.” Abbott Labs., 387 U.S. at 

154 (rejecting the argument that “the threat of criminal sanctions” was “unrealistic”). Courts 

normally do not require people “to bet the farm” in order to bring an administrative challenge. 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 11

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 490 (2010) (internal 

quotation marks omitted). Yet the IRS seems to think people should bet their liberty.

Going forward in this circuit, the IRS will have the power to impose sweeping “guidance” 

across areas of public and private life, backed by civil and criminal sanctions, and left unchecked 

by administrative or judicial process. Surely nobody in 1867 would have understood the AntiInjunction Act to require such a result. See Pullan v. Kinsinger, 20 F. Cas. 44, 48 (C.C.S.D. Ohio 

1870) (describing the Act as “wholly unnecessary, enacted only as a politic and kindly publication 

of an old and familiar [common law] rule”); Erin Morrow Hawley, The Equitable Anti-Injunction 

Act, 90 Notre Dame L. Rev. 81, 96–97 (2014). Nor should we have allowed it. 

By this point, one might recognize the “elephant in the room.” Gutierrez-Brizuela v. 

Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). The Founders gave

Congress the “Power To lay and collect Taxes.” U.S. Const. art. I, § 8, cl. 1. They limited this 

power to Congress because they understood full well that “the power to tax involves the power to 

destroy.” M’Culloch v. Maryland, 17 U.S. 316, 431 (1819) (Marshall, C.J.). But today, the IRS 

(an executive agency) exercises the power to tax and to destroy, in ways that the Founders never 

would have envisioned. E.g., In re United States (NorCal Tea Party Patriots), 817 F.3d 953 (6th 

Cir. 2016). Courts accepted this departure from constitutional principle on the promise that 

Congress would still constrain agency power through statutes like the Administrative Procedure 

Act. 5 U.S.C. § 500 et seq. We now see what many feared: that promise is often illusory.

The IRS offers some arguments in response. It first contends that several Supreme Court 

decisions support its interpretation. Specifically, the agency points to Alexander v. “Americans 

United” Inc., 416 U.S. 752 (1974) and Bob Jones Univ. v. Simon, 416 U.S. 725 (1974). In those 

cases, the Court held that the Anti-Injunction Act barred challenges to the IRS’s decision to revoke 

the tax-exempt status of two nonprofits. The nonprofits each argued that their lawsuits sought 

only to maintain their flow of charitable donations, not to restrain a tax. But the Court recognized 

that the “primary” or “obvious purpose” of both lawsuits was to restrain the collection of taxes. 
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 12

“Americans United,” 416 U.S. at 760–61; Bob Jones, 416 U.S. at 738.1 Indeed, the plaintiffs in 

those cases were “defeated by [their] own pleadings, since the only injuries [they] identified 

involved tax liability.” Seven-Sky, 661 F.3d at 10 (citing “Americans United,” 416 U.S. at 761; 

Bob Jones, 416 U.S. at 738–39). Yet here CIC has a clear interest—separate from any potential 

“tax” liability—in avoiding the substantial costs of the reporting requirement. The “purpose” of 

its lawsuit is to obtain relief from costs the company must pay today, not to restrain a penalty it 

might have to pay tomorrow. The agency also cites NFIB, 567 U.S. 519. But that decision never 

reached the question whether the lawsuit had the “purpose of restraining” a tax because the penalty 

in that case was not a “tax.” See id. at 546.2 

Lastly, the IRS invokes a policy concern, asserting that any other interpretation would 

allow parties to circumvent the Anti-Injunction Act through “ingenious” pleading. IRS Br. at 43. 

But the agency has offered little basis for that concern. And the Supreme Court’s decisions in 

“Americans United” and Bob Jones suggest that courts can determine a lawsuit’s purpose without 

barring every pre-enforcement challenge involving the IRS (or requiring would-be plaintiffs to file 

their lawsuits from prison). More to the point, the Court has repeatedly told us that we may not 

rewrite a statute based on policy concerns. See, e.g., Azar v. Allina Health Servs., 139 S. Ct. 1804, 

1815 (2019). In sum, the Anti-Injunction Act should not apply to this suit.

 

1To be sure, the Supreme Court suggested at one point that the Anti-Injunction Act would bar any lawsuit 

that would “necessarily preclude” the collection of taxes. Bob Jones, 416 U.S. at 732. But that stray phrase has never 

since been invoked by the Court, even in a decision released on the same day by the same Justice about the same issue. 

See “Americans United,” 416 U.S. 752. If the test truly were whether a lawsuit would “necessarily preclude” the 

collection of taxes, then “Americans United” would have been a much easier case. Instead, the Court spent ten pages 

analyzing the facts of the case and the purpose of the lawsuit. See id. The “necessarily preclude” test would also have 

the inconvenient feature of rewriting the Anti-Injunction Act to say “effect” rather than “purpose.”

2Of course, thoughtful jurists have read these cases as well as the Anti-Injunction Act differently. See CIC 

Servs., 925 F.3d 247; Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065 (D.C. Cir. 2015). But the 

Supreme Court long ago rejected the suggestion that circuit courts should automatically follow each other’s decisions. 

Instead, “the primary duty of every court is to dispose of cases according to the law and the facts; in a word, to decide 

them right.” Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488 (1900). And in rehearing this case, we could have 

considered other related questions that may bear on its outcome. See Hobby Lobby, 723 F.3d at 1157–59 (Gorsuch, 

J., concurring) (reasoning that the Anti-Injunction Act is not jurisdictional); Hawley, supra, at 90–110, 125–32 

(arguing the same and noting that, if the Act is not jurisdictional, it may permit courts to grant equitable relief in a 

broader array of cases than currently recognized).
No. 18-5019 CIC Services, LLC v. IRS, et al. Page 13

***

The IRS has long “envision[ed] a world in which no challenge to its actions is ever outside 

the closed loop of its taxing authority.” Cohen v. United States, 650 F.3d 717, 726 (D.C. Cir. 

2011) (en banc). With today’s decision, I fear we have made some large strides towards such a 

world. For these reasons, I respectfully dissent from the denial of rehearing en banc.

ENTERED BY ORDER OF THE COURT

__________________________________

Deborah S. Hunt, Clerk