It is a safe presumption that the money for the project will come out of the Intellectual Infrastructure Fund. As of today, NSF has not begun to spend any of the Next Generation funds. However, there is no legal impediment to these expenditures, and NSF could begin funding the program at any time. IV Success on the Merits Plaintiffs assert that the Preservation Assessment is an illegal tax, and that defendants should ultimately be compelled not only to cease collecting these taxes, but also to refund monies already collected. In the present motion, plaintiffs merely ask the Court to freeze the fees already collected, and to prevent their expenditure until the Court has reached a decision on the merits.
Plaintiffs show a substantial likelihood of success on the merits.
It is undisputed that only Congress has the power to levy taxes. U.S. Const., Art. Thus, since NSF levied the Preservation Assessment, it would be illegal, if it is a tax on domain registration. Plaintiffs can prevail on the merits only if they demonstrate two things. First, plaintiffs must show that the Preservation Assessment is a tax, which NSF cannot oppose, and not a mere regulatory fee, which NSF can legally impose.