[00:00:01] Speaker 02: Case number 16, that's 5265. [00:00:04] Speaker 02: Eva Mays at L, Appellants versus Internal Revenue Service at L. Mr. Clark for the Appellants, Mr. Weiner for the Appellees. [00:00:53] Speaker 00: Good morning. [00:00:54] Speaker 00: Good morning, George Clark, on behalf of Appellants. [00:00:57] Speaker 00: The Anti-Injunction Act doesn't apply here because at the end of the day, the IRS will be able to assess and collect whatever tax my clients owe under the proper procedure set out at law. [00:01:08] Speaker 00: In fact, our suit is an attempt to get my clients in the proper procedure so that they can pay the same taxes that other similarly situated people pay. [00:01:21] Speaker 00: a little bit of background. [00:01:22] Speaker 03: So they can't collect the 20% accuracy-related penalty, right? [00:01:27] Speaker 00: Well, they could. [00:01:27] Speaker 00: If my clients apply for the streamline procedure and the government decides, you know what, we actually don't think you qualify for the streamline procedure because you're willful, [00:01:39] Speaker 00: then the government can collect that penalty plus the 3520 penalties plus a fraud penalty plus the F bar penalty in full at 50%. [00:01:48] Speaker 00: They can collect anything they want if they make that determination now. [00:01:52] Speaker 03: That's if you don't qualify for the streamlined procedure. [00:01:54] Speaker 00: Well, again, what this suit is about is about my clients being able to apply directly to the streamlined procedures and have the same rules that apply to those streamlined procedures apply to them. [00:02:06] Speaker 00: Once those same rules apply, the government looks at that filing and says, OK, do we think these people qualify? [00:02:13] Speaker 00: If they do that on a nondiscriminatory basis, not because we brought this suit, but they apply the same rules to everybody else. [00:02:19] Speaker 00: And they decide, you know what? [00:02:20] Speaker 00: We actually don't think they qualify for a streamlined. [00:02:22] Speaker 00: We think these people were willful. [00:02:24] Speaker 00: they can do whatever they want in that circumstance. [00:02:26] Speaker 00: The government concedes that. [00:02:27] Speaker 00: I mean, the rules themselves say that very clearly. [00:02:32] Speaker 00: The only circumstance in which they can't collect the accuracy-related penalty is if they actually look at the streamlined filing and say, you know what? [00:02:41] Speaker 00: These people do qualify. [00:02:42] Speaker 00: They qualify just like all these other people that had the same conduct, just like somebody that right now today, if somebody today came forward, they would have the benefit of that streamlined program. [00:02:52] Speaker 00: And that's all we're trying to do is to get the same benefit for our clients, for people that came in earlier than people that are today. [00:03:00] Speaker 00: There's no difference in that. [00:03:01] Speaker 03: So if you get what you want, they can't collect the accuracy penalty that they otherwise would collect? [00:03:07] Speaker 00: Not necessarily. [00:03:08] Speaker 00: What we want is the ability to apply to Streamline. [00:03:11] Speaker 03: But you don't want to be streamlined? [00:03:13] Speaker 00: We do want to be streamlined. [00:03:14] Speaker 01: But the government is going to get... I thought you were asking for an injunction to be put in the streamline program. [00:03:20] Speaker 00: No, we're asking for an injunction to prevent the transition rule from blocking us from applying to streamline. [00:03:29] Speaker 00: we want to just be able to apply like everybody else and we want our our application to be treated just like everybody else's notwithstanding the fact that we had tried to do the right thing and disclosed earlier prior to there being another program but if you win [00:03:45] Speaker 01: there are taxes that you otherwise would have had to pay that you will not need to pay, right? [00:03:50] Speaker 01: The penalties, right? [00:03:51] Speaker 00: The remedy of this court won't be responsible for that, though, Your Honor. [00:03:55] Speaker 01: If we look at what this court... Well, that's cutting it really fine. [00:03:58] Speaker 01: I mean, we're supposed to construe these arguments narrowly, right? [00:04:04] Speaker 01: Because the broad purposes of the Anti-Injunction Act [00:04:07] Speaker 01: are to allow the IRS to collect first and then to quarrel later, right? [00:04:12] Speaker 01: So we're supposed to look with some skepticism on arguments that avoid that. [00:04:19] Speaker 01: And I'm afraid I don't see how your argument [00:04:26] Speaker 01: gets you there. [00:04:27] Speaker 01: Because from my vantage point, you're in a situation right now where you're going to have to pay taxes that you wouldn't have to pay if you prevail. [00:04:36] Speaker 01: And that seems to me to be kind of in the wheelhouse of what the Anti-Injection Act is talking about. [00:04:41] Speaker 00: Your Honor, I think if we think about what Z Street and Cohen both say, that we're supposed to look at the remedy that we're asking for. [00:04:48] Speaker 00: The remedy that we're asking for is, set aside the transition rule and let these people apply directly to the streamline program. [00:04:56] Speaker 01: Whatever happens, happens. [00:04:57] Speaker 01: But in each of those cases, the remedy the petitioners are seeking couldn't be obtained through a refund action. [00:05:05] Speaker 01: Yours can. [00:05:06] Speaker 01: It can't be, Your Honor. [00:05:08] Speaker 01: Why not? [00:05:08] Speaker 01: Because the question is you go to court, you argue, the legality of the regulatory scheme, you prevail, you get your money back. [00:05:16] Speaker 01: That's what a refund suit is about. [00:05:18] Speaker 00: Your Honor, we're not going to be able to argue the legality of the Offshore Voluntary Disclosure Program. [00:05:23] Speaker 00: There's two outcomes that happen. [00:05:25] Speaker 00: If this court rules against us, there's two things that happen. [00:05:28] Speaker 00: One, we stay in voluntary disclosure and sign a closing agreement. [00:05:31] Speaker 00: Clearly, we can't argue against that later. [00:05:34] Speaker 00: The second is we get thrown out of the Offshore Voluntary Disclosure Program because they say, you know what, you guys didn't comply with the transition rule. [00:05:41] Speaker 00: Even though the transition rule was discriminatory, you guys didn't comply with it. [00:05:44] Speaker 00: The first argument the government's going to make in a refund suit as to that program issue is, [00:05:50] Speaker 00: Well, they got kicked out. [00:05:50] Speaker 00: They didn't follow the program. [00:05:52] Speaker 00: If the program was a safe harbor, they don't have a right to rely on that. [00:05:55] Speaker 00: The only case they cite in support of that error is IBM. [00:05:58] Speaker 01: You got kicked out because if you prevailed in your refund suit that I'm imagining, you got kicked out because it was unlawful, right? [00:06:05] Speaker 01: The transition rules were unlawful for whatever reasons. [00:06:09] Speaker 01: It's not a voluntary choice of yours. [00:06:11] Speaker 01: You had no other options. [00:06:12] Speaker 00: The only case that they cite really for this is that IBM case. [00:06:16] Speaker 00: And IBM involved direct competitors where one got a ruling from the government and the other one was trying to get the same ruling. [00:06:23] Speaker 00: And all the courts after IBM have restricted IBM to that same capacity, the same rule that basically it only applies to direct competitors where one gets a ruling and where one doesn't. [00:06:34] Speaker 00: That's the discrimination that we're alleging is a problem. [00:06:38] Speaker 03: So can you restate [00:06:39] Speaker 03: precisely what is the deficiency in the mechanism of the refund action? [00:06:45] Speaker 03: What are you worried about exactly? [00:06:47] Speaker 00: Them saying that we cannot raise the fact that the rule was discriminatory, that the transition rule and the streamlined procedures were discriminatory against us, okay, because we ourselves [00:07:02] Speaker 00: didn't comply with those rules. [00:07:04] Speaker 00: And it was a safe harbor. [00:07:05] Speaker 00: That rule is a safe harbor. [00:07:07] Speaker 00: It's voluntary. [00:07:08] Speaker 00: You don't have to apply to this. [00:07:10] Speaker 00: You can just go and have the regular code applied to you and everything else. [00:07:14] Speaker 00: You don't have to get the benefit of the streamlined procedures. [00:07:16] Speaker 00: If you want, you can just file back tax returns and see what happens. [00:07:19] Speaker 00: That's perfectly within your right to do. [00:07:21] Speaker 00: And the government's first argument is going to be, look, you guys had your chance. [00:07:24] Speaker 00: You should have followed through on the transition rule. [00:07:27] Speaker 00: You didn't follow through on the transition rule. [00:07:28] Speaker 00: You got kicked out. [00:07:29] Speaker 00: That's what the government's going to argue. [00:07:31] Speaker 03: Yeah, but if your argument is an objection to the screen line procedures, let's suppose your argument is there's something wrong with the eligibility criteria for the screen line procedures. [00:07:41] Speaker 03: They're arbitrary. [00:07:42] Speaker 03: And then if you go through a refund action and you challenge [00:07:46] Speaker 03: you're being disabled from getting the benefit of the streamline procedure and therefore having to pay a higher tax on the ground that the criteria for the streamline procedures are arbitrary. [00:07:57] Speaker 03: I thought what the government is saying is you can raise that kind of challenge in the refund action. [00:08:01] Speaker 00: I view this as the government in this court right now is saying that we can raise that. [00:08:06] Speaker 00: All of these taxpayers are going to be in different circuits than this circuit, and I have had many experiences with the Department of Justice lawyers, and again, I'm not insulting anyone, where they take the position that's most beneficial to them wherever they're at. [00:08:19] Speaker 03: The fact that counsel said in a brief... Let's suppose, I know that you disagree with this, but let's just suppose it turns out that the view that I'm attributing to the government now is correct. [00:08:29] Speaker 03: and that you could raise that kind of challenge in a refund action, i.e. [00:08:33] Speaker 03: a challenge to the eligibility criteria for the three line procedures. [00:08:37] Speaker 03: If that's true, then would you agree at that point that you have to wait and do it in the context of the refund action? [00:08:43] Speaker 00: We don't. [00:08:43] Speaker 00: That would be great news, Your Honor. [00:08:44] Speaker 00: We would appreciate that. [00:08:46] Speaker 00: We do not think that that's an exception to the Anti-Injunction Act, okay? [00:08:50] Speaker 00: that we don't believe that the Anti-Injunction Act at all applies to this suit for the reasons that I gave initially, which is, at the end of the day, the government can do whatever it wants here. [00:09:00] Speaker 00: If the government gets these applications, all we're asking for is we get to apply to streamline, just like everybody else. [00:09:07] Speaker 00: And they can't discriminate against us because we brought the suit. [00:09:10] Speaker 00: The government looks at the filing. [00:09:11] Speaker 00: Maybe for one client, they say, yeah, we think you guys meet it. [00:09:14] Speaker 00: Another client, they say, we don't think you meet it. [00:09:17] Speaker 00: They can then apply the full plan more than the accuracy-related penalty. [00:09:21] Speaker 00: They can go after us for fraud. [00:09:22] Speaker 00: They can go after us for F bar. [00:09:23] Speaker 00: They can go after us for 35, 20, everything. [00:09:25] Speaker 00: And the government admits that. [00:09:27] Speaker 00: So from our perspective, there is no block. [00:09:29] Speaker 00: There is no restraint. [00:09:31] Speaker 00: Direct marketing said stop. [00:09:33] Speaker 00: It does not stop assessment and collection. [00:09:35] Speaker 00: Does it hinder assessment and collection? [00:09:37] Speaker 00: Is it something the government doesn't want? [00:09:39] Speaker 00: Sure. [00:09:40] Speaker 00: But does it stop assessment and collection when they can actually do anything that they want? [00:09:44] Speaker 00: Once we're in that program, as long as they don't do it on a discriminatory basis, we think no. [00:10:05] Speaker 02: Good morning, and may it please the court, Andy Wiener for the United States Internal Revenue Service. [00:10:11] Speaker 02: This case involves the pre-enforcement challenge to an IRS policy that once you're in the OBDP, you are not entitled to apply directly to the streamlined procedures. [00:10:22] Speaker 02: When the streamlined procedures were enacted in 2014, [00:10:26] Speaker 02: The IRS anticipated that certain people would be interested in the streamlined procedures because they offer a different basket of benefits, some of which are better, some of which are worse, and that some people would want that. [00:10:39] Speaker 02: And what the IRS did was they provided an alternative for those people who are already in ODVP, which is the transition rules. [00:10:47] Speaker 01: I'm curious, what's the policy behind not allowing them to transfer to the streamlined procedures? [00:10:55] Speaker 01: You have a transition rule, but you can't really get to the streamlined procedures if you're already in the OVDP. [00:11:00] Speaker 02: Well, I think that there are two answers. [00:11:02] Speaker 02: One is that, again, there are different baskets of benefits, some of which are better, which is what the taxpayers here are focused on, some of which are worse. [00:11:11] Speaker 02: For example, you get a considerable degree of finality through the OVDP that you do not get with streamlined procedures. [00:11:20] Speaker 02: You get a closing agreement at the end. [00:11:21] Speaker 02: You also get, and this is the big ticket item, you get CI clearance, criminal investigation clearance from the IRS at the time that you enter the OBDP. [00:11:33] Speaker 02: And that means that the IRS has determined that you're not currently under investigation. [00:11:38] Speaker 02: And that your initial disclosers comply with the policy of the IRS that if you disclose and are cooperative, then the IRS will not make a criminal referral. [00:11:53] Speaker 01: If you're a criminal. [00:11:54] Speaker 01: I get all of that. [00:11:55] Speaker 01: Maybe it's not a legally relevant question, but I just don't quite understand why the policy was created such that if you're in the OVDP at the time that the SP comes along, why can't you just switch to it? [00:12:05] Speaker 02: Well, I mean, again, two reasons. [00:12:08] Speaker 02: One is that you've already accrued certain benefits that, you know, that you got by entering, which is that CI disclosure. [00:12:15] Speaker 01: You've got this... But why not let the taxpayer decide that if they want to? [00:12:20] Speaker 02: Well, another factor I think is that, and this is... [00:12:23] Speaker 02: in that, for example, in what's in the administrative record in that slide that's from the IRS is that the IRS was going through a process by which it was trying to bring people voluntarily in the door in a balanced way. [00:12:38] Speaker 02: They wanted to hold people accountable, but they wanted to offer enough incentive that people would voluntarily come forward. [00:12:43] Speaker 02: And basically what you're doing is you're taking off, you're dredging off, the people are at the highest risk, the people who have the most exposure are going to come in the door first. [00:12:53] Speaker 02: And they largely did so when the program was initially enacted, I believe in 2010. [00:13:01] Speaker 02: Then there was a second OVDP in which another basket of people came in, and the IRS found through a bunch of sources, the private bar, through taxpayer advocate, that there were people who didn't feel like the [00:13:17] Speaker 02: The terms were too harsh and they were sitting on the sidelines and the IRS wanted to bring them in. [00:13:21] Speaker 02: And so these programs happened sequentially in order to capture different populations that were sitting on the sidelines. [00:13:30] Speaker 02: So now we're down to after the OVDP that these taxpayers came in on, [00:13:37] Speaker 02: You had a bunch of taxpayers who had very marginal exposure. [00:13:42] Speaker 02: They had small accounts. [00:13:43] Speaker 02: They might not have even known about them. [00:13:45] Speaker 02: And the IRS opened up a program that was just for them. [00:13:49] Speaker 02: The streamlined procedures are not meant for all non-welfare filers. [00:13:53] Speaker 02: That's a misnomer. [00:13:54] Speaker 02: That's what taxpayers want to believe because they say, well, we're not willful, so we should be entitled to the benefit. [00:14:01] Speaker 02: But that's not right. [00:14:02] Speaker 03: Suppose that a taxpayer is trying to make this decision about whether to try for the streamlined procedures or go with OVDP. [00:14:09] Speaker 03: Is the taxpayer worse off if they've yet to make that choice than if they've already decided to seek the benefits of the OVDP by the time the streamlined procedures were announced? [00:14:20] Speaker 02: Well, they... You understand my question? [00:14:22] Speaker 03: I'm trying to figure out whether if you have the choice activity and you could go into either one, are you better off than someone who didn't have that choice already because the streamline procedures weren't yet in existence and so they already decided to go with the OBDP and then the streamline procedure are announced and they say, wait a minute, wait a minute, wait a minute, let me think this. [00:14:41] Speaker 03: If I had this to do all over again, knowing what I know now, I would have made a different choice. [00:14:47] Speaker 02: The reality is that the choice can't be exactly equal. [00:14:52] Speaker 02: Because if you make the choice after 2014 when the streamlined procedures have been enacted, you get to choose. [00:14:58] Speaker 02: You can go to the OBDP or you can go to the streamlined procedures. [00:15:02] Speaker 02: And that reality can't be for somebody who's already in the OBDP. [00:15:06] Speaker 02: And that's where the transition rules really come into play. [00:15:09] Speaker 02: It tries to equalize the playing field as much as possible. [00:15:12] Speaker 02: It says, listen, you've already accrued certain benefits. [00:15:15] Speaker 02: You've already gotten the CI clearance. [00:15:18] Speaker 03: That's why the choice campaign made equal is because of the benefits you've already accrued. [00:15:21] Speaker 02: You've already accrued benefits. [00:15:23] Speaker 02: You've also, I mean, again, it's a different, the IRS at that point in 2014 is looking at a different population. [00:15:30] Speaker 02: that they're trying to bring in the door than in 2012. [00:15:34] Speaker 02: And so they have to make judgment calls as to what's the proper balance between incentivizing people to come in the door, but yet holding them accountable. [00:15:43] Speaker 02: And when you already have a bunch of people who have a tremendous amount of risk in terms of liability, in terms of criminal exposure, when you've already brought those people in the door, the balance shifts. [00:15:54] Speaker 02: And you gotta like lessen the penalties. [00:15:57] Speaker 02: You gotta create more incentives for people to voluntarily disclose. [00:16:01] Speaker 02: And so that, I mean, that is another component. [00:16:04] Speaker 02: The idea of the transition rule say, listen, we'll give you the same penalty. [00:16:09] Speaker 02: that the streamlined procedure people got. [00:16:12] Speaker 02: But we're not going to take it on faith that you're non-willful. [00:16:17] Speaker 02: You're going to have to demonstrate to us that you're non-willful. [00:16:20] Speaker 02: And so we're not going to bear the burden like we do in the streamlined procedures. [00:16:23] Speaker 02: We're also not going to give you the, we're not going to only hold you accountable for taxes for three years. [00:16:30] Speaker 02: You're going to have to pay eight years. [00:16:32] Speaker 02: We're not going to lessen the filing burdens. [00:16:35] Speaker 02: People in the streamlined procedures only file three years worth of terms. [00:16:39] Speaker 02: OVDP people have to file eight years worth of returns. [00:16:43] Speaker 02: And so the scale has been slid back. [00:16:48] Speaker 02: And in some ways, the IRS has said, listen, we understand these people have certain benefits that you don't get. [00:16:54] Speaker 02: And so we're going to meet you [00:16:56] Speaker 02: most of the way, but because you're a different population, and so therefore we need to, we need more returns, we need more... Can I ask you this question? [00:17:05] Speaker 03: So let's just assume for argument purposes, I know you disagree with the premise, but assume for argument purposes that we think that the same standard that applies under the Tax Injunction Act also applies here, so that it requires something more than inhibiting interest and something I can just stop it. [00:17:22] Speaker 03: If that's true, the other side's argument, as we've seen in the recent, as we heard this morning, is that, well, it's not a complete stop because we don't know whether we, the taxpayer, are going to qualify for the streamlined procedures. [00:17:34] Speaker 03: So the IRS still has actually the opportunity to collect the same accuracy-related penalty. [00:17:37] Speaker 03: What's your response to that? [00:17:39] Speaker 02: Well, as I believe you pointed out earlier, their suit does stop the collection of three years' worth of accuracy-related penalties by virtue of entering. [00:17:49] Speaker 02: The streamline procedures say no accuracy-related penalties for those three years that they're relevant to the program. [00:17:55] Speaker 03: But what if their position is, we're not actually asking to be put in the streamline procedures. [00:18:00] Speaker 03: What we're asking for is to be considered for the streamline procedures. [00:18:03] Speaker 03: And if we're just asking to be considered for them, then we don't know yet that the IRS can't collect the accuracy related penalty because if they reject our application, they can collect it. [00:18:12] Speaker 02: Well, two answers to that, Your Honor. [00:18:14] Speaker 02: The first one is that it's still for the purpose of, their purpose is to not pay accuracy related penalties. [00:18:23] Speaker 02: And so for the purpose of restraining, their suit is clearly for the purposes of not paying those accuracy related penalties as far as a whole bunch of other taxes. [00:18:32] Speaker 02: And then second, I would say that that argument [00:18:37] Speaker 02: would reduce the Anti-Injunction Act to effectively nothing. [00:18:42] Speaker 02: Bob Jones could have said, listen, we could get excluded from, our tax exempt status could be taken away by a number of other reasons. [00:18:54] Speaker 02: We just want to be able to continue to discriminate in our admissions policies. [00:18:59] Speaker 02: And so therefore, we're not actually asking for a reduction in taxes. [00:19:03] Speaker 02: We're just asking for the ability to continue to discriminate. [00:19:06] Speaker 02: And the Supreme Court clearly said no to the extent that you have the ability to challenge [00:19:19] Speaker 02: your claim in a refund suit, which these taxpayers clearly do, they can withdraw from the OVDP, they can pay their taxes, and then they can challenge the bar on their entry into the streamlined procedures. [00:19:33] Speaker 02: And so therefore, this is, as I believe Judge Bifrost said, within the wheelhouse of what the Anti-Injunction Act is. [00:19:41] Speaker 03: Can I ask one last question, which is on the South Carolina issue? [00:19:46] Speaker 03: One can make the argument that you can't put them in the same position in a refund suit because in order to get in the position of a refund suit even coming into the field of vision as a sequence of actions that could ensue, they have to give up the OVDP. [00:20:05] Speaker 03: And so what they'd like to do is get the benefit of staying in the OVDP, but still get a test on whether their injection to the threshold criteria to get in the streamlined procedures are valid or invalid. [00:20:18] Speaker 02: No, they cannot stay within the OBDP. [00:20:22] Speaker 02: These are two separate programs. [00:20:24] Speaker 02: So if they want to gain entry into the streamlined procedures, they have to withdraw from the OBDP. [00:20:28] Speaker 02: They've got to apply. [00:20:30] Speaker 02: They will get rejected, as they've been told. [00:20:32] Speaker 02: And then they can bring a suit in which they challenge that. [00:20:38] Speaker 03: So I think everybody agrees, they're definitely worse off [00:20:42] Speaker 03: if they seek to air this claim in a refund action, then they would be if we allowed this suit to proceed. [00:20:48] Speaker 02: Yes, but if I can provide a brief answer. [00:20:53] Speaker 02: But clearly Bob Jones has said just because of the requirements that you have to go through in order to bring a refund action puts you in a precarious financial detriment to you. [00:21:06] Speaker 02: That is far short of what the South Carolina exception exists because you have no ability, not that the ability would be, you know, would have repercussions. [00:21:18] Speaker 03: And what they're worried about is that right now you're saying, [00:21:22] Speaker 03: they will have the ability to raise a claim about the criteria for the streamlined procedures in a refund action. [00:21:29] Speaker 03: And what they've said is that, well, that's fine, and they had to say it now. [00:21:32] Speaker 03: But then when we get in a refund action, we're worried that the government's going to come in and tell us we can't raise that kind of argument. [00:21:37] Speaker 02: Yes, but they can't enunciate a reason as to why. [00:21:40] Speaker 02: If they withdraw from the OBDK. [00:21:42] Speaker 03: So you don't foresee a situation in which the government would raise that kind of objection in a refund action? [00:21:46] Speaker 02: No, because the, again, if you don't, [00:21:49] Speaker 02: Again, it is the streamlined procedures themselves, as well as the Q&A regarding the OVDP that says, listen, if you're already in the OVDP, you cannot enter the streamlined procedures. [00:22:08] Speaker 02: The transition rules is a benefit to them. [00:22:10] Speaker 02: And that's available if you're in the OBDP. [00:22:13] Speaker 02: If they withdraw from the program, yes, they can't get the transition treatment anymore. [00:22:18] Speaker 02: But they can still apply for streamlined procedures and challenge the bar on the express bar on being able to enter because they were already part of the OBDP. [00:22:31] Speaker 02: And unless there are any further questions, we have. [00:22:34] Speaker 03: All right. [00:22:34] Speaker 03: Thank you. [00:22:35] Speaker 03: Does Mr. Clark have any time? [00:22:37] Speaker 00: Mr. Clark, I have one minute, please. [00:22:38] Speaker 00: OK. [00:22:41] Speaker 00: Thank you. [00:22:42] Speaker 00: Some of my colleagues' comments with respect to the for the purpose of start to get close to a sort of subjective test, which is sort of, I think, the way the 10th Circuit might have looked at it in Green Solutions, but certainly not the way this Court has looked at it. [00:22:53] Speaker 00: This is not a test of what the subjective purpose of my clients were in bringing this suit. [00:23:00] Speaker 00: The question is, what does the order look like? [00:23:03] Speaker 00: What remedy do we get? [00:23:05] Speaker 00: And if that order says, you can apply for streamlined, that order definitely does not stop the assessment or collection of tax. [00:23:14] Speaker 00: And that's the test. [00:23:15] Speaker 00: I think a good way to look at this is to flip it. [00:23:17] Speaker 00: Imagine we were in voluntary or we were in streamlined and we were trying to compel the government to take us into voluntary disclosure where there's limited audit. [00:23:27] Speaker 00: You get a specific defined amount of your penalty that's way less than what the tax code would otherwise allow. [00:23:33] Speaker 00: Tax code in the Bank Secrecy Act would otherwise allow 50% FBAR versus 27.5% FBAR. [00:23:39] Speaker 00: We get a closing agreement. [00:23:40] Speaker 00: We get criminal protection. [00:23:42] Speaker 00: If we were arguing from screen line to get into voluntary disclosure, there absolutely would be a restraint on assessment and collection. [00:23:50] Speaker 00: And I think that's illustrative. [00:23:52] Speaker 00: How can it be that there's a restraint when we're going one way and there's still a restraint on going the other way? [00:23:57] Speaker 00: It doesn't make any sense. [00:23:58] Speaker 00: If there's a restraint going from screen line to voluntary disclosure, then going from voluntary disclosure to the much more open screen line [00:24:04] Speaker 00: or the government can do in a non-discriminatory fashion, whatever it wants to do based on the law is not a restraint. [00:24:12] Speaker 00: The other point I would make with respect to the policy argument or policy question that Judge Griffith had, the government, when they originally rolled out Streamline, they actually said people will be able to transition. [00:24:23] Speaker 00: And actually, for people that hadn't completed certain steps in voluntary disclosure, people that hadn't done what they were supposed to do on a timely basis, they were able to transition without having these [00:24:34] Speaker 00: rules apply to them. [00:24:35] Speaker 00: One final point, one of my clients, Ms. [00:24:37] Speaker 00: Batra, she didn't even apply for voluntary disclosure. [00:24:40] Speaker 00: The government stuck her in voluntary disclosure. [00:24:43] Speaker 00: Why didn't they stick her in Streamline when Streamline came out? [00:24:46] Speaker 00: They stuck her in voluntary disclosure and now we're stuck trying to figure out how to argue out and get her into voluntary disclosure. [00:24:52] Speaker 00: None of that's fair and none of that should have an impact on the Anti-Injunction Act unless there's further questions. [00:24:57] Speaker 00: I have nothing else. [00:24:58] Speaker 00: Thank you very much.