Government Says Captive Insurance Disclosure Suit Properly Dismissed

CIC SERVICES, LLC,
Plaintiff-Appellant
v.
INTERNAL REVENUE SERVICE; DEPARTMENT OF TREASURY;
UNITED STATES OF AMERICA,
Defendants-Appellees

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE

BRIEF FOR THE APPELLEES

RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General

TRAVIS A. GREAVES
Deputy Assistant Attorney General

GILBERT S. ROTHENBERG (202) 514-3361
TERESA E. MCLAUGHLIN (202) 514-4342
BETHANY B. HAUSER (202) 514-2830
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044

Of Counsel:

J. DOUGLAS OVERBEY
United States Attorney

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TABLE OF CONTENTS

Table of contents

Table of authorities

Statement regarding oral argument

Jurisdictional statement

Statement of the issue

Statement of the case

Summary of argument

Argument:

Conclusion

Certificate of compliance

Addendum

Certificate of service

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TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

Alexander v. “Americans United,” 416 U.S. 752 (1974)

Ambort v. United States, 392 F.3d 1138 (10th Cir. 2004)

American Soc'y of Assoc. Executives v. Bentsen, 848 F. Supp. 245 (D.D.C. 1994)

Avrahami v. Commissioner, 149 T.C. No. 7 (2017)

Blech v. United States, 595 F.2d 462 (9th Cir. 1979)

Bob Jones Univ. v. Simon, 416 U.S. 725 (1974)

Bowen v. Massachusetts, 487 U.S. 879 (1988)

California v. Regan, 641 F.2d 721 (9th Cir. 1981)

Campbell v. Guetersloh, 287 F.2d 878 (5th Cir. 1961)

Cattle Feeders Tax Comm. v. Shultz, 504 F.2d 462 (10th Cir. 1974)

Cellnet Commc'ns, Inc. v. F.C.C., 149 F.3d 429 (6th Cir. 1998)

Chamber of Commerce v. IRS, 2017 WL 4682050 (N.D. Tex. Oct. 6, 2017), appeal docketed, No. 17-51063 (5th Cir. Dec. 1, 2017)

Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) (en banc)

Colangelo v. United States, 575 F.2d 994 (1st Cir. 1978)

Crouch v. Commissioner, 447 F. Supp. 385 (N.D. Cal. 1978)

Debt Buyers' Ass'n v. Snow, 481 F. Supp. 2d 1, 9 (D.D.C. 2006)

Dickens v. United States, 671 F.2d 969 (6th Cir. 1982)

Direct Marketing Ass'n v. Brohl, 135 S. Ct. 1124 (2015)

Ecclesiastical Order of the ISM of AM, Inc. v. IRS, 725 F.2d 398 (6th Cir. 1984)

Educo, Inc. v. Alexander, 557 F.2d 617 (7th Cir. 1977)

Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1 (1962)

Flora v. United States, 362 U.S. 145 (1960)

Florida Bankers Ass'n v. U.S. Dep't of Treasury, 799 F.3d 1065 (D.C. Cir. 2015), cert denied, 136 S. Ct. 2429 (2016)

Foodservice & Lodging Inst., Inc. v. Regan, 809 F.2d 842 (D.C. Cir. 1987)

Fostvedt v. United States, 978 F.2d 1201 (10th Cir. 1992)

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

Green Solution Retail, Inc. v. United States, 855 F.3d 1111 (10th Cir. 2017), cert. denied, 138 S. Ct. 1281 (2018)

Hotze v. Burwell, 784 F.3d 984 (5th Cir. 2015), cert. denied, 136 S. Ct. 1165 (2016)

Hughes v. United States, 953 F.2d 531 (9th Cir. 1992)

Inv. Annuity, Inc. v. Blumenthal, 609 F.2d 1 (D.C. Cir. 1979)

Jericho Painting & Special Coating v. Richardson, 838 F. Supp. 626 (D.D.C. 1993)

Judicial Watch, Inc. v. Rossotti, 317 F.3d 401 (4th Cir. 2003)

Kemlon Prods. & Dev. Co. v. United States, 638 F.2d 1315 (5th Cir. 1981)

Koin v. Coyle, 402 F.2d 468 (7th Cir. 1968)

Larson v. United States, 888 F.3d 578 (2d Cir. 2018), aff'g 2016 WL 7471338 (S.D.N.Y. Dec. 28, 2016)

Lewis v. Sandler, 498 F.2d 395 (4th Cir. 1974)

Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013)

LNV Corp. v. Hook, No. 14-1438, 2015 WL 4927014 (10th Cir. Aug. 19, 2015)

Lowrie v. United States, 824 F.2d 827 (10th Cir. 1987)

Maze v. IRS, 862 F.3d 1087 (D.C. Cir. 2017)

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)

Mellon v. Kurtz, 575 F.2d 547 (5th Cir. 1978)

Mobile Republican Assembly v. United States, 353 F.3d 1357 (11th Cir. 2003)

Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)

Nat'l Rest. Ass'n v. Simon, 411 F. Supp. 993 (D.D.C. 1976)

Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995)

Phillips v. Commissioner, 283 U.S. 589 (1931)

RYO Machine, LLC v. U.S. Dep't of Treasury, 696 F.3d 467 (6th Cir. 2012)

Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011)

Smith v. Booth, 823 F.2d 94 (5th Cir. 1987)

Smith v. Rich, 667 F.2d 1228 (5th Cir. 1982)

South Carolina v. Regan, 465 U.S. 367 (1984)

United States v. Dema, 544 F.2d 1373 (7th Cir. 1976)

United States v. Mendoza, 464 U.S. 154 (1984)

We the People Foundation v. United States, 485 F.3d 140 (D.C. Cir. 2007)

Wyoming Trucking Ass'n, Inc. v. Bentsen, 82 F.3d 930 (10th Cir. 1996)

Z Street v. Koskinen, 791 F.3d 24 (D.C. Cir. 2015)

Constitution and Statutes:

U.S. Constitution:

Administrative Procedure Act (APA), 5 U.S.C.:

American Jobs Creation Act of 2004, Pub. L. No. 108-357, §§ 811-919, 118 Stat. 1418

Anti-Injunction Act, 26 U.S.C. § 7421

Congressional Review Act (CRA)

Declaratory Judgment Act, 28 U.S.C. § 2201 et seq

Internal Revenue Code (26 U.S.C.):

28 U.S.C.:

An Act to amend chapter 7, title 5, United States Code, with respect to procedure for judicial review of certain administrative agency action, and for other purposes, Pub. L. No. 94-574, 90 Stat. 2721 (Oct. 21, 1976)

Tax Injunction Act, 28 U.S.C. § 1341

Miscellaneous:

Fed. R. App. P. 4(a)(1)(B)

H.R. Rep. No. 94-1656, reprinted at 1976 U.S.C.C.A.N. 6121 (Sept. 22, 1976)

H.R. Rep. No. 108-548 (2004)

IRS news release IR-2015-25, “Abusive Tax Shelters Again on the IRS 'Dirty Dozen' List of Tax Scams for the 2016 Filing Season,” (Feb. 16, 2016)

IRS Notice 2016-66, 2016-47 I.R.B. 745 (Nov. 21, 2016)

IRS Notice 2017-08, 2017-3 I.R.B. 423 (Jan. 17, 2017)

Treasury Decisions:

Treasury Regulations (26 C.F.R.):

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STATEMENT REGARDING ORAL ARGUMENT

In this case, plaintiff is seeking to maintain a pre-enforcement challenge to tax shelter reporting and disclosure requirements that are enforceable by civil penalties that are treated as taxes under the Internal Revenue Code. The appeal presents a question of significant administrative importance regarding the scope of the ban on injunctive and declaratory relief involving federal taxes. Counsel for the United States believe that oral argument should be heard.

JURISDICTIONAL STATEMENT

A. District Court jurisdiction

CIC Services, LLC (plaintiff)¹ brought this suit seeking injunctive and declaratory relief against the Internal Revenue Service (IRS), the Department of the Treasury, and the United States. (Complaint, RE No. 1, Page ID # 1-14.)² Plaintiff invoked the District Court's federal question jurisdiction under 28 U.S.C. § 1331 and asserted that a waiver of sovereign immunity existed under the Administrative Procedure Act (APA), 5 U.S.C. § 702. (Complaint, RE No. 1, Page ID # 2.) The Government contended, however (Memorandum in support of defendants' motion to dismiss, RE No. 25-1, Page ID # 463, 468-471), and the District Court agreed (Memorandum opinion, RE No. 35, Page ID # 593-597), that the suit is barred by the Anti-Injunction Act, 26 U.S.C. (I.R.C.) § 7421(a), and the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. As we explain in the Argument, infra, the court's ruling is correct and should be affirmed.

B. Appellate jurisdiction

The District Court entered its judgment on November 2, 2017. (Judgment order, RE No. 36, Page ID # 598.) The judgment was a final judgment disposing of all claims of all parties. On December 28, 2017, plaintiff filed a timely notice of appeal. (Notice of appeal, RE No. 37, Page ID # 599.) Fed. R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether the District Court correctly held that plaintiff's pre-enforcement challenge to “reportable transaction” disclosures required of material advisors by I.R.C. §§ 6111 and 6112, which are enforceable by civil penalties under I.R.C. §§ 6707 and 6708 that are treated as “taxes” under I.R.C. § 6671, is barred by the Anti-Injunction Act, 26 U.S.C. (I.R.C.) § 7421(a), and the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

STATEMENT OF THE CASE

A. The nature of the dispute and summary of proceedings

Plaintiff brought this suit to challenge the validity of IRS Notice 2016-66, 2016-47 I.R.B. 745 (Nov. 21, 2016), as modified by IRS Notice 2017-08, 2017-3 I.R.B. 423 (Jan. 17, 2017), which imposed certain reporting requirements in connection with a subset of captive insurance arrangements.³ (Complaint, RE No. 1, Page ID # 1.) The District Court (Judge Travis R. McDonough) denied plaintiff's motion for a preliminary injunction, reasoning that plaintiff had little likelihood of success on the merits. (Memorandum opinion and order, RE No. 24, Page ID # 453.) The court then granted the Government's motion to dismiss for lack of subject matter jurisdiction. (Memorandum opinion, RE No. 35, Page ID # 593; Judgment order, RE No. 36, Page ID # 598.)

B. The relevant facts

1. Reportable transactions under the Internal Revenue Code and Treasury Regulations

I.R.C. § 6011(a) requires taxpayers and other persons to make returns or statements “[w]hen required by regulations prescribed by the Secretary.” As relevant here, the Treasury Regulations under § 6011 require a taxpayer to disclose his participation in a “reportable transaction” by attaching an information statement to his income tax return. Treas. Reg. § 1.6011-4(a) (26 C.F.R.); I.R.C. § 6707A(c) (defining “reportable transaction” by reference to the regulations under § 6011).

The reportable transaction regime can be traced to T.D. 8877, 65 Fed. Reg. 11,305 (Mar. 2, 2000), adopting Treas. Reg. § 1.6011-4T(b)(2), which was finalized by T.D. 9046, 68 Fed. Reg. 10161 (Mar. 4, 2003), adopting Treas. Reg. § 1.6011-4(b)(2). When Congress has revisited — and strengthened — the statutory reporting scheme, most notably in 2004, see American Jobs Creation Act of 2004, Pub. L. No. 108-357, §§ 811-919, 118 Stat. 1418, 1575-1585, it has left the definition of “reportable transaction” to be defined by the Secretary in regulations. See I.R.C. §§ 6707A(c)(1) (defining “reportable transaction” as determined under regulations prescribed under § 6011); I.R.C. §§ 6111(b)(2), 6112(a), 6707(d) (each defining “reportable transaction” by reference to § 6707A(c)). As a result of this statutory design, “the Secretary may modify . . . the definitions of 'listed transaction' and 'reportable transaction' [ ] as appropriate.” H.R. Rep. No. 108-755, at 597 n.463 (2004). As the House Ways and Means Committee explained (H.R. Rep. No. 108-548 at 261):

[T]he best way to combat tax shelters is to be aware of them. The Treasury Department, using the tools available, issued regulations requiring disclosure of certain transactions and requiring organizers and promoters of tax-engineered transactions to maintain customer lists and make those lists available to the IRS.

Treas. Reg. § 1.6011-4(b)(1) contains a list of reportable transactions. A reportable transaction includes, inter alia, a “listed transaction,” i.e., “a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service (IRS) has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction” (Treas. Reg. § 1.6011-4(b)(2)), and a “transaction of interest,” i.e., “a transaction that is the same as or substantially similar to one of the types of transactions that the IRS has identified by notice, regulation, or other form of published guidance as a transaction of interest” (Treas. Reg. § 1.6011-4(b)(6)). “[A] transaction of interest is a transaction that the IRS and Treasury Department believe has a potential for tax avoidance or evasion, but for which the IRS and Treasury Department lack enough information to determine whether the transaction should be identified specifically as a tax avoidance transaction.” T.D. 9350, 72 Fed. Reg. 43146-01 (Aug. 3, 2007).

I.R.C. § 6111 requires a “material advisor” to disclose any reportable transaction by identifying it and describing its structure and claimed tax benefits. I.R.C. § 6111(a), (b)(2). A “material advisor” is one (i) who “provides any material aid, assistance, or advice with respect to organizing, managing, promoting, selling, implementing, insuring, or carrying out any reportable transaction” and (ii) who directly derives gross income for such aid, assistance or advice of least $250,000 ($50,000 if substantially all of the tax benefits accrue to natural persons).⁴ I.R.C. § 6111(b)(1). I.R.C. § 6112 further requires a material advisor to maintain a list identifying each person with respect to whom the advisor acted as a material advisor for a reportable transaction.

Failure to comply with the foregoing requirements may result in the imposition of penalties under I.R.C. §§ 6707, 6707A and 6708. In the case of a material advisor's failure to furnish information under § 6111 regarding a reportable transaction other than a listed transaction, the penalty is $50,000. I.R.C. § 6707(b)(1). In the case of a listed transaction, the penalty is the greater of $200,000 or 50 percent of the gross income derived by the material advisor (75 percent if the failure is intentional). I.R.C. § 6707(b)(2). Except with respect to listed transactions, the Commissioner may rescind the penalty under I.R.C. § 6707 if doing so would promote compliance and effective tax administration. I.R.C. § 6707(c).

I.R.C. § 6707A imposes a penalty on a taxpayer for failure to disclose a reportable transaction under I.R.C. § 6011.⁵ The amount of the penalty is generally 75 percent of the decrease in tax shown on the return as a result of the transaction, subject to minimum and maximum amounts. I.R.C. § 6707A(b)(1). In the case of a listed transaction, the maximum penalty is $200,000 ($100,000 in the case of a natural person). I.R.C. § 6707A(b)(2)(A). In the case of another type of reportable transaction, the maximum penalty is $50,000 ($10,000 in the case of a natural person). I.R.C. § 6707A(b)(2)(B). The minimum penalty is $10,000 ($5,000 in the case of a natural person). I.R.C. § 6707A(b)(3). As with the § 6707 penalty, the § 6707A penalty may be rescinded by the Commissioner, except with respect to listed transactions, if doing so would promote compliance and tax administration. I.R.C. § 6707A(d).

I.R.C. § 6708 imposes a penalty upon a material advisor required to maintain a list under I.R.C. § 6112 who fails to make such a list available upon written request to the Secretary within 20 business days after the date of such request. The penalty is $10,000 for each day of such failure after such 20th day. The penalty under I.R.C. § 6708 does not apply if there is reasonable cause for the failure. I.R.C. § 6708(a)(2).

The penalties imposed by §§ 6707, 6707A, and 6708 are all assessable penalties found in Subchapter B of Chapter 68 of the Code. I.R.C. § 6671(a) provides that penalties in that subchapter “shall be paid upon notice and demand . . ., and shall be assessed and collected in the same manner as taxes.” Section 6671(a) further provides that “any reference in this title to 'tax' imposed by this title [i.e., Title 26, the Internal Revenue Code] shall be deemed also to refer to the penalties and liabilities provided by this subchapter.” Id.

2. In Notice 2016-66, the IRS identified micro-captive transactions as “transactions of interest”

In November 2016, the IRS released Notice 2016-66, supra. Notice 2016-66 designated a subset of so-called captive insurance transactions as a transaction of interest. 2016-47 I.R.B. 745, 746-747. In the Notice, Treasury and the IRS announced that they were “aware of a type of transaction[ ] . . . in which a taxpayer attempts to reduce the aggregate taxable income of the taxpayer, related persons, or both, using contracts that the parties treat as insurance contracts and a related company that the parties treat as a captive insurance company.”⁶ Id. at 745. In a micro-captive insurance transaction, the entity that the parties treat as an insured entity under the contracts claims deductions for premiums paid as ordinary and necessary under I.R.C. § 162(a). The related company that the parties treat as a captive insurance company elects under I.R.C. § 831(b) to be taxed only on investment income and therefore excludes up to $1,200,000 for payments received under the contract from its taxable income ($2,200,000 for taxable years beginning after December 31, 2016). But “[t]he manner in which the contract[ ] [is] interpreted, administered, and applied is inconsistent with arm's length transactions and sound business practices.” 2016-47 I.R.B. at 745.

The Notice referred (2016-47 I.R.B. at 745) to an earlier press release, which described the characteristics of an abusive micro-captive insurance scheme as follows (IR-2015-25, “Abusive Tax Shelters Again on the IRS 'Dirty Dozen' List of Tax Scams for the 2016 Filing Season,” at 2 (Feb. 16, 2016)):

In the abusive structure, unscrupulous promoters, accountants, or wealth planners persuade the owners of closely held entities to participate in these schemes. The promoters assist the owners to create captive insurance companies onshore or offshore and cause the creation and sale of the captive “insurance” policies to the closely held entities. The policies may cover ordinary business risks or esoteric, implausible risks for exorbitant “premiums,” while the insureds continue to maintain their far less costly commercial coverages with traditional insurers. Captive “insurance” policies may attempt to cover the same risks as are covered by the entities' existing commercial coverage, but the captive policies' “premiums” may be double or triple the premiums of the policy owners' commercial policies.

Annual premium amounts are frequently targeted to the amounts of deductions business entities seek in order to reduce their taxable income. In these abusive schemes, total premiums can equal up to $1.2 million annually to take full advantage of the premium income exclusion provision. Underwriting and actuarial substantiation for the insurance premiums paid are either absent or illusory. The promoters manage the entities' captive insurance companies for substantial fees, assisting taxpayers unsophisticated in insurance, to continue the charade from year to year.

See generally Avrahami v. Commissioner, 149 T.C. No. 7 (2017) (describing an abusive captive insurance transaction and disallowing the related tax benefits on the grounds that it was a sham). Notice 2016-66 explained that although Treasury and the IRS believed that micro-captive transactions have “a potential for tax avoidance or evasion,” they “lack sufficient information to identify which § 831(b) arrangements should be identified specifically as a tax avoidance transaction and may lack sufficient information to define the characteristics that distinguish the tax avoidance transactions from other § 831(b) related-party transactions.” 2016-47 I.R.B. at 745.

The Notice then identified micro-captive insurance transactions with certain characteristics as “transactions of interest for purposes of § 1.6011-4(b)(6) of the Income Tax Regulations and §§ 6111 and 6112 of the Code.” 2016-47 I.R.B. at 745, 746-747. It identified, as transactions of interest, captive insurance transactions involving an § 831(b) election where the insured (or related persons) directly or indirectly own at least 20 percent of the captive where one or both of two other circumstances are present in the last five years or, if shorter, the captive's entire existence. 2016-47 I.R.B. at 746-747. One circumstance is where the captive's liability for losses and claim administration expenses is less than 70 percent of the premiums earned less policyholder dividends paid. Id. at 747. The other is whether the captive makes available any portion of the payments under the contract as financing to the insured (or related persons), such as through a guarantee or loan, in a manner not resulting in taxable gain to the recipient. Id. The Notice advised that transactions that are the same as or substantially similar to the described transaction are transactions of interest to which reporting requirements apply under Treas. Reg. § 1.6011-4(b)(6) and I.R.C. §§ 6111 and 6112.

3. The proceedings in the District Court

a. The complaint

In response to Notice 2016-66, plaintiff CIC Services, which describes itself as “a manager of captive insurance companies,” filed this suit. (Complaint, RE No. 1, Page ID # 3.) Plaintiff asserted that the Notice “required the filing of certain informational returns . . . under threat of severe monetary penalties, public embarrassment and ridicule.” (Complaint, RE No. 1, Page ID # 2.) Plaintiff asked the court to set aside the Notice as procedurally and substantively invalid. The complaint alleged that the Notice is procedurally invalid because (i) it constitutes a legislative rule that was unlawfully issued without prior notice and comment, in violation of the APA (Complaint, RE No. 1, Page ID # 9-11), and (ii) the IRS allegedly failed to submit it to Congress and the Comptroller General in accordance with the Congressional Review Act (CRA), 5 U.S.C. § 801 et seq. (Complaint, RE No. 1, Page ID # 14-15.) The complaint further alleged that the Notice is substantively invalid on the ground that requiring such disclosure is arbitrary, capricious, and irrational. (Complaint, RE No. 1, Page ID # 11-14.) Plaintiff asked the court to declare the notice invalid and to enjoin its enforcement. (Complaint, RE No. 1, Page ID # 15-16.)

b. The proceedings on plaintiff's request for a preliminary injunction

Plaintiff then filed a motion for a preliminary injunction against the Notice. (RE No. 8, Page ID # 79.) At the hearing on that motion, Sean King, an attorney and certified public accountant (CPA) (Transcript, RE No. 41, Page ID # 621) testified as plaintiff's founder and principal (id., Page ID # 620). CIC Services, he testified, was a “captive manager” — a “third-party administrator” that did “all the compliance work, all of the consulting and advising work” and served as the “designated responsible party” by the State of Tennessee. (Id., Page ID # 623.) Plaintiff also provided “bookkeeping services,” “coordinat[ed] the required CPA audit of the captive each year”; “coordinate[ed] the efforts of the captive's lawyer [and its] actuary[ ] to renew policies each year,” as well as “administering the policies” and “in some cases, administering claims.” (Id., Page ID # 642.) For this “comprehensive suite of services,” plaintiff did not “bill[ ] by the hour” but was paid “an overall fee.” (Id.) Because of its role, King maintained, plaintiff is a “material advisor” within the meaning of the Notice. (Id., Page ID # 624.)

According to King, the captive insurance industry had “been knocked off its stride . . . by IRS scrutiny” (id., Page ID # 627), including audits, “multiple promoter investigations” (id., Page ID # 629), the listing of these transactions as one of the IRS's “Dirty Dozen tax scams” (id., Page ID # 630), and the issuance of the Notice (id.). According to King, plaintiff had lost some prospective clients and had existing clients who intended to shut down their captive insurance companies as a result. (Id.) King asserted that the Notice imposed “reputational damage” to plaintiff, and increased the cost of its “errors and omissions insurance.” (Id., Page ID # 633.) King also testified that, because plaintiff was a material advisor, the Notice required it to incur “hundreds of thousands of dollars” of compliance costs.⁷ (Id., Page ID # 648.) On cross-examination, King admitted that captives could “most definitely” “be used for tax avoidance or evasion purposes.” (Id., Page ID # 645.)

c. The District Court's memorandum opinion and order denying the preliminary injunction

The District Court denied plaintiff's motion for a preliminary injunction. (Memorandum opinion and order, RE No. 24, Page ID # 445.) Regarding the potential harms absent an injunction, the court rejected plaintiff's argument that it would suffer “embarrassment and reputational damage” from the Notice, suggesting that “such harm . . . most likely resulted from the IRS's announcement that captive insurance companies are a potential tax scheme, not from the actions Plaintiffs now challenge.” (Id., Page ID # 452 n.7.) It found, however, that plaintiff would likely incur “at least some irreparable harm” in the form of compliance costs. (Id. Page ID # 451.)

The District Court found, however, “that the public interest would not be served by issuing Plaintiffs' requested injunction.” (Id. Page ID # 452.) “Although Plaintiffs may take issue with the IRS's interest in their industry,” the court observed, “the public interest in identifying transactions potentially aimed at tax avoidance or evasion outweighs any incidental effects on entities forced to comply with the IRS's reporting requirements.” (Id. Page ID # 453.)

In the District Court's view, plaintiff was “unlikely to succeed on the merits,” “because the Court likely does not have subject-matter jurisdiction to issue Plaintiffs' requested injunction.” (Id. Page ID # 448.) The court observed that the Anti-Injunction Act, I.R.C. § 7421(a), barred the court from issuing injunctive relief regarding taxes, and that the statutory penalty for failure to report a reportable transaction was defined by statute to be a “tax” for purposes of the Anti-Injunction Act. (Id.) In this analysis, the District Court followed the reasoning of the Supreme Court in Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543 (2012) (NFIB), and the decision of the D.C. Circuit in Florida Bankers Ass'n v. U.S. Dep't of Treasury, 799 F.3d 1065 (D.C. Cir. 2015), cert denied, 136 S. Ct. 2429 (2016). (Id. at 448-449.)

In Florida Bankers, the District Court explained, “the D.C. Circuit reaffirmed that plaintiffs cannot sidestep the [Anti-Injunction Act] by ostensibly challenging only a reporting requirement and not the penalties imposed for violating that reporting requirement.” (Id., Page ID # 450, citing Florida Bankers, 799 F.3d at 1072.) A “challenge to such a requirement is 'necessarily also a challenge to the tax imposed for failure to comply with that reporting requirement' because '[i]f plaintiffs' challenge were successful, the IRS would be unable to assess or collect that tax for failure to comply with the reporting requirement.'” (Id., quoting Florida Bankers, supra (alteration by the District Court).)

The District Court also rejected plaintiff's argument that even if Florida Bankers was correctly decided, the court could issue an injunction under South Carolina v. Regan, 465 U.S. 367 (1984). (Id., Page ID # 450-451 n.5.) Relying on this Court's decision in RYO Machine, LLC v. U.S. Dep't of Treasury, 696 F.3d 467, 472 (6th Cir. 2012), the District Court held that the South Carolina exception to the Anti-Injunction Act did not extend to the circumstances of this case. (Id.)

Weighing the factors together, the court concluded that, “[e]ven taking into consideration that Plaintiffs have demonstrated some likelihood of irreparable harm, the Court finds Plaintiffs have not carried their burden of demonstrating that a preliminary injunction is warranted, primarily because Plaintiffs' requested injunction is likely barred by the Anti-Injunction Act.” (Id., Page ID # 453.)

d. The proceedings on the Government's motion to dismiss

The United States then moved to dismiss the entire suit for lack of subject matter jurisdiction. (Motion to dismiss, RE No. 25-1, Page ID # 467-480.) As relevant here, the Government asserted that plaintiff's suit is one for the purpose of restraining the assessment or collection of federal taxes and, as such, is barred by the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act. (Id. Page ID # 468-471.) It further asserted that the complaint on its face did not establish that plaintiff had standing to sue under Article III of the Constitution because, among other things, it “scrupulously avoid[ed] any allegation that [it had] participated in a particular Reportable Transaction or served as a material advisor.”⁸ (Id. Page ID # 478.) In response, plaintiff opposed the motion and conditionally sought leave to amend its complaint to aver that it was a material advisor that had reported transactions under the Notice. (Response to motion to dismiss, RE No. 26, Page ID # 517.)

The District Court granted the Government's motion, dismissing the case for lack of jurisdiction. (Judgment order, RE No. 36, Page ID # 598.) In the accompanying memorandum opinion, the court determined that under “the plain language of the governing statutes” (viz., I.R.C. § 6671(a)), the “penalties” imposed by I.R.C. §§ 6707(a), 6707A, and 6708(a) are “taxes” that fall “within the [Anti-Injunction Act's] prohibition against injunctive relief.” (Memorandum opinion, RE No. 35, Page ID # 594.) As in its order denying the preliminary injunction, the court relied on the Supreme Court's reasoning, in NFIB, that “Congress can 'describe something as a penalty but direct that it nonetheless be treated as a tax for the purposes of the [AIA]'” — and on its observation that Congress had done so, with respect to “[p]enalties in subchapter 68B,” including the penalties at issue here. (Id., quoting NFIB, 567 U.S. at 544 (alterations by the District Court).) The court again relied on Florida Bankers, holding with the D.C. Circuit that “the [Anti-Injunction Act] contemplated judicial review only after [the plaintiff] failed to report, paid the resultant penalty, and sued for a refund.” (Id., Page ID # 594-95.)

The District Court further held that “plaintiffs cannot sidestep the [Anti-Injunction Act] by ostensibly challenging only a reporting requirement and not the penalties imposed for violating that reporting requirement . . . because '[i]f plaintiff's challenge were successful, the IRS would be unable to assess or collect that tax for failure to comply with the reporting requirement.'” (Id., Page ID # 595-596, quoting Florida Bankers, 799 F.3d at 1071-1072 (alteration by the District Court).) The court rejected plaintiffs' reliance on the exception to the Anti-Injunction Act described in South Carolina v. Regan, supra. It held that “the ability to initiate a refund suit after paying an assessed penalty provides an adequate alternative avenue to challenge IRS action.” (Id., Page ID # 595 n.4.) The District Court also rejected plaintiffs' reliance on Direct Marketing Ass'n v. Brohl, 135 S. Ct. 1124 (2015), on the same analysis and for the same reasons given by the D.C. Circuit in Florida Bankers. (Id., Page ID # 596 n.5.)

In sum, the District Court concluded, “Plaintiffs' claims and their requested injunction necessarily operate as a challenge to both the reporting requirement and the penalty or tax imposed for failure to comply with the reporting requirement.” (Id., Page ID # 596.) Because Congress has stated that those compliance penalties are taxes for purposes of the Anti-Injunction Act, “Plaintiffs' claims are barred by the [Anti-Injunction Act] and the tax exception to the [Declaratory Judgment Act],” and “the Court lacks subject-matter jurisdiction.” (Id., Page ID # 596.)

Finally, the District Court denied plaintiffs' motion to amend the complaint to assert that they already had complied with the Notice. Even if there was no possibility of the IRS assessing penalties against plaintiffs, the District Court explained, the relief they sought — “a declaration that the Notice is invalid, and an injunction prohibiting the IRS from enforcing the Notice” — “still seeks to restrain the IRS's assessment or collection of taxes, even if not directly from Plaintiffs.” (Id.)

SUMMARY OF ARGUMENT

Congress has long granted the Treasury the authority under I.R.C. § 6011 to require the reporting of information bearing upon tax liability. The Treasury has used that authority to require the disclosure of certain “reportable transactions” of a type having a potential for tax avoidance or evasion. In addition, since 2004, as part of a Congressional effort to crack down on tax shelters, I.R.C. § 6111 has required any “material advisors” reaping threshold amounts of income from reportable transactions to disclose such arrangements, while I.R.C. § 6112 requires material advisors to maintain lists of advisees entering into such transactions. A material advisor's failure to make such a disclosure and to produce such a list upon request are subject to civil penalties under I.R.C. §§ 6707 and 6708, respectively.

Plaintiff brought this suit to challenge IRS Notice 2016-66, 2016-47 I.R.B. 745 (Nov. 21, 2016), in which the IRS designated certain micro-captive insurance transactions as transactions of interest that have a potential for tax avoidance or evasion. Plaintiff has conceded that such transactions indeed have the potential for tax avoidance. It nevertheless objects to the disclosure and list-maintenance requirements occasioned by the designation and seeks to have them set aside.

1. As a threshold matter, plaintiff's challenge to the Notice and the attendant disclosure requirements is barred by the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act. Together, those statutes ban the issuance of injunctive and declaratory relief against the assessment and collection of a tax and, instead, confine claims challenging federal taxes to suits for refund. This suit — which would throw a wrench into reporting requirements designed to combat abusive tax shelters — interferes with the carefully designed system established by Congress for assessing and collecting federal taxes. Plaintiff's request for declaratory and injunctive relief against the reporting requirements is a premature challenge to an important piece of the federal tax enforcement scheme. It is precisely the type of interference that the Acts were intended to preclude.

The District Court correctly held that this suit is barred by the Acts. Plaintiff would have the court flatly preclude the IRS from imposing penalties under I.R.C. §§ 6707 and 6708 upon a material advisor's failure to comply with the disclosure requirements under I.R.C. §§ 6111 and 6112. Those penalties, however, are located in Subchapter 68B of the Internal Revenue Code (entitled “Assessable Penalties”). Section 6671 provides that “[e]xcept as otherwise noted, any reference in this title to 'tax' imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter.” “[T]his title” refers to Title 26 of the Code, of which the Anti-Injunction Act, I.R.C. § 7421(a), is a part. Under the plain language of the statute, the §§ 6707 and 6708 penalties are “taxes.” Consequently, a suit to enjoin their assessment is one “for the purpose of restraining the assessment or collection of” a tax, and it is accordingly barred by the Anti-Injunction Act.

2. Plaintiff argues that it is not attempting to restrain the assessment or collection of the penalty, but is merely seeking to bar enforcement of the reporting requirement enforced by the penalty. As the District Court correctly held, however, such a fine distinction cannot be sustained. If the reporting requirements triggered by Notice 2016-66 are invalidated, the IRS will not be able to assess or collect the penalties that enforce that reporting requirement. The suit therefore falls within the Act's strictures.

Plaintiff misplaces its reliance upon Direct Marketing Ass'n v. Brohl, 135 S. Ct. 1124 (2015), where the Supreme Court held that the Tax Injunction Act, 28 U.S.C. § 1341, did not bar a prepayment challenge by out-of-state retailers to a requirement to report use tax information to their customers and the State. The text of the Anti-Injunction Act, which prohibits a suit “for the purpose of restraining the assessment or collection of any tax,” differs from that of the Tax Injunction Act. Unlike the Tax Injunction Act, the Anti-Injunction Act does not use the word “restrain” in conjunction with “enjoin” or “suspend.” And it was that context that led the Court in Direct Marketing to conclude that “restrain” was used in the Tax Injunction Act merely as a term of art in describing equitable remedies, rather than in its more restrictive sense of to limit, restrict or stop. In the Anti-Injunction Act, by contrast, “restraining” stands alone. And in keeping with the Anti-Injunction Act's purposive focus, this suit is one to “stop” the assessment of penalties under §§ 6707 and 6708.

3. Finally, the District Court correctly rejected plaintiff's contention that this suit falls within the exception to the Anti-Injunction Act recognized in South Carolina v. Regan, 465 U.S. 367 (1984), where there is no alternative remedy for the alleged injury. There, the State wished to preserve its ability to raise money from the sale of bonds by challenging a tax imposed on bonds issued in bearer form. Since the State was not itself a taxpayer, it had no way other than an injunction suit to mount such a challenge. The same is not true here. A material advisor seeking to challenge Notice 2016-66 has a remedy not available to the State. It can decline to report a transaction and to keep customer lists, pay the ensuing penalties, and sue for refund.

The judgment of the District Court is correct and should be affirmed.

ARGUMENT

The District Court correctly held that this suit is barred by the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act

Standard of review

Whether the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act deprived the District Court of subject matter jurisdiction presents a question of law, reviewable de novo. See RYO Machine, LLC v. United States Dept. of Treasury, 696 F.3d 467, 471 (6th Cir. 2012).

A. Plaintiff's suit falls within the prohibition against suits for the purpose of restraining the assessment or collection of any tax

1. Congress has banned the issuance of declaratory and injunctive relief with respect to federal taxes

The Anti-Injunction Act, I.R.C. § 7421(a), provides that, with certain statutory exceptions not applicable here, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” I.R.C. § 7421(a). With stated exceptions not relevant here, the Declaratory Judgment Act likewise expressly bars claims to declaratory relief “with respect to Federal taxes.” 28 U.S.C. § 2201(a).⁹ The principal purpose of the Anti-Injunction Act is the “protection of the Government's need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference,” Bob Jones Univ. v. Simon, 416 U.S. 725, 736-737 (1974), “'and to require that the legal right to the disputed sums be determined in a suit for refund.'” Id., quoting Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 7 (1962); see also Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543 (2012) (NFIB). A suit that runs afoul of this proscription must be dismissed for lack of subject matter jurisdiction. Alexander v. “Americans United,” 416 U.S. 752, 758 (1974); Bob Jones Univ., 416 U.S. at 749; RYO Machine, 696 F.3d at 470-471.

In this case, the District Court concluded that it lacked subject matter jurisdiction to enjoin IRS Notice 2016-66, 2016-47 I.R.B. 745 (Nov. 21, 2016), or to declare it invalid, because this suit is barred by the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. As we explain below, that conclusion is correct. The reporting requirements at issue here are enforced through “taxes” within the meaning of the Anti-Injunction Act, and plaintiff seeks to prohibit the assessment and collection of those taxes. (Memorandum opinion, RE No. 35, Page ID # 595-596.)

Before addressing the direct effect of the notice on plaintiff, however, we note that plaintiff also invokes the indirect effect of the notice, as well as other public statements by the IRS, on its potential clients' decisions whether to engage in business with a “micro-captive servicer” like plaintiff. E.g., Br. 8 (citing a “chilling effect on CIC Services'[ ] business.”). To the extent plaintiff relies on this injury, it is complaining of “the exercise of unbridled, legitimate business discretion by [potential clients], and not directly out of any injury caused by the [IRS],” a position that “raises serious questions regarding [plaintiff's] standing to bring suit.” RYO Machine, 696 F.3d at 473 n.3. Indeed, as this Court observed in RYO Machine, were an “investment advisor who specializes in placing clients under a tax shelter suing to halt the IRS's invalidation of that shelter because the shelter advisor would lose business,” the suit would be “barred by the [Anti-Injunction Act].” Id. at 472-73, citing Educo, Inc. v. Alexander, 557 F.2d 617, 620 (7th Cir. 1977); Inv. Annuity, Inc. v. Blumenthal, 609 F.2d 1, 7-8 (D.C. Cir. 1979). Simply put, a material advisor cannot sue to enjoin the IRS from publicly stating its view of the law, even if that statement will harm his business. Because plaintiff here alleged harms beyond the reduction in its ability to sell micro-captive insurance services to risk-averse taxpayers, to wit, the costs of compliance with the recordkeeping and reporting requirements of Notice 2016-66, the foregoing considerations limit the scope of the court's inquiry, but do not dispose of this case.

2. This suit falls within the broad proscription against suits for the purpose of restraining assessment and collection

The prohibition on injunctive relief contained in the Anti-Injunction Act applies broadly, reaching not only actions directly involving assessment or collection, but also those that might affect assessment or collection indirectly. The Act bars any “suit for the purpose of restraining the assessment or collection of any tax.” I.R.C. § 7421(a). Based on this language, focusing on the purpose of the suit, the Supreme Court has held that the Anti-Injunction Act barred suits to enjoin the revocation of tax-exempt status — suits that did not directly involve tax assessment or collection.

In Bob Jones, 416 U.S. at 738-39, the Court held that the Anti-Injunction Act barred a request to enjoin the Treasury from revoking the university's status as a tax-exempt charitable organization under I.R.C. § 501(c)(3) due to its racially discriminatory admissions policy, even though the suit did not directly involve assessment or collection. The suit was still one “for the purpose of ” restraining assessment and collection, in the Court's view, because an injunction would have precluded collection, not only of income and payroll excise taxes from the university, but also taxes from donors seeking to deduct their contributions. Id. at 739. And because the university had the remedy of paying the tax due on revocation and suing for a refund, the Court held that it had “a full, albeit delayed, opportunity to litigate the legality of the . . . revocation of tax-exempt status.” Id. at 746.

In “Americans United,” 416 U.S. at 760, the Court likewise held that the Anti-Injunction Act barred a suit to enjoin a revocation of § 501(c)(3) status. It noted that the taxpayer could challenge the ruling in a suit for refund of federal unemployment tax that turned on that same classification. The Court held that the suit fell within the Act's strictures, even though the organization had volunteered to pay its federal unemployment taxes even if its tax-exempt status were restored. The Court opined that “[u]nder any reasonable construction of the statutory term 'purpose,' the objective of this suit was to restrain the assessment and collection of taxes from respondent's contributors.” 416 U.S. at 760. In so holding, the Court described the “sweeping terms” of the Anti-Injunction Act and emphasized that the focus should be on the true “objective of [the] suit,” no matter how it is framed. Id. at 760-761.

Accordingly, in determining whether a suit falls within the Act's strictures, the court must conduct “a careful inquiry into the remedy sought, the statutory basis for that remedy, and any implication the remedy may have on assessment and collection.” Cohen v. United States, 650 F.3d 717, 727 (D.C. Cir. 2011) (en banc); Maze v. IRS, 862 F.3d 1087, 1092 (D.C. Cir. 2017) (dismissing a suit by participants in an offshore compliance initiative to require the IRS to admit them to a more lenient program where doing so would have reduced their liabilities). To that end, the Anti-Injunction Act has been frequently applied to preclude suits to prevent the IRS from determining that a tax is even due. For example, the Act bars suits to strike down various provisions of the tax law (or even the income tax in general) on various constitutional grounds. E.g., Mellon v. Kurtz, 575 F.2d 547, 548-549 (5th Cir. 1978) (per curiam) (barring equal protection challenge to graduated income tax rates and Fifth Amendment self-incrimination challenge to the obligation to file a return); Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1435-1438 (D.C. Cir. 1995) (barring Due Process challenge to retroactive increase in estate and gift tax rates); Wyoming Trucking Ass'n, Inc. v. Bentsen, 82 F.3d 930, 933-934 (10th Cir. 1996) (barring an Origination Clause challenge to the constitutionality of the fuel excise tax). And just as challenges to the revocation of private letter rulings granting exemptions were barred by the Anti-Injunction Act in Bob Jones and “Americans United,” the Act also bars challenges to the application of Revenue Rulings under which taxpayers' tax liabilities would have been increased. Investment Annuity, Inc. v. Blumenthal, 609 F.2d 1, 4 (D.C. Cir. 1979); Educo, 557 F.2d at 620; Cattle Feeders Tax Comm. v. Shultz, 504 F.2d 462, 463 (10th Cir. 1974).¹⁰

It is well settled, moreover, that the Anti-Injunction Act “is not limited to suits aimed at the specific act of assessment or collection, . . . but is equally applicable to activities which are intended to or may culminate in the assessment or collection of taxes.” Dickens v. United States, 671 F.2d 969, 971 (6th Cir. 1982).¹¹ Accordingly, “it has been held that suits that do not directly seek to restrain tax assessment or collection are nonetheless barred if they are directed at the means by which the IRS achieves those ends.” Seven-Sky v. Holder, 661 F.3d 1, 10 (D.C. Cir. 2011), abrogated on other grounds, NFIB, supra. Attempts to interfere with investigations into the existence of a tax liability or to strip the IRS of tools and techniques for doing so have therefore been barred. Dickens, supra (refusing to enjoin use of information obtained pursuant to a legal search warrant in determining tax liability); Smith v. Rich, supra (issuance of internal revenue summonses may not be enjoined); Kemlon Prods. & Dev. Co. v. United States, 638 F.2d 1315, 1320-1321 (5th Cir. 1981) (disclosure of return information in connection with canvass of taxpayer's customers during audit could not be enjoined); United States v. Dema, 544 F.2d 1373 (7th Cir. 1976) (refusing to enjoin summonses); Lewis v. Sandler, 498 F.2d 395, 398-399 (4th Cir. 1974) (refusing to enjoin local officials from giving the IRS information about narcotics traffickers used by the IRS to make jeopardy assessments); Koin v. Coyle, 402 F.2d 468, 469 (7th Cir. 1968) (refusing to prevent the IRS from using evidence allegedly obtained illegally as the basis for an assessment); Campbell v. Guetersloh, 287 F.2d 878, 879, 880-881 (5th Cir. 1961) (refusing to enjoin the IRS from using the bank deposits method of calculating unreported income). As the D.C. Circuit noted in Seven-Sky, 661 F.3d at 10, the Act “bars suits that interfere with ancillary functions to tax collection.”

The Anti-Injunction Act also applies to bar attempts to enjoin a reporting requirement that is enforceable by means of a penalty treated as a “tax” under I.R.C. § 6671(a). The Supreme Court's decision in NFIB is instructive on this point. There, the Court held that the penalty under I.R.C. § 5000A for failing to comply with the individual mandate requiring health insurance coverage was not a “tax” within the meaning of the Anti-Injunction Act. 567 U.S. at 543-546. In the course of its analysis, however, the Court recognized that “Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act.” Id. at 544. “For example,” the Court continued, “26 U.S.C. § 6671(a) provides that 'any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by' sub-chapter 68B of the Internal Revenue Code.” Id. (citation omitted). Accordingly, the Court explained, “[p]enalties in subchapter 68B are . . . treated as taxes under Title 26, which includes the Anti-Injunction Act.” Id. at 544-545. But because the § 5000A penalty there at issue was “not in subchapter 68B,” it was not covered by the Anti-Injunction Act. Id. at 545.

In the wake of NFIB, the D.C. Circuit held, in Florida Bankers Ass'n v. Dept. of the Treasury, 799 F.3d 1065 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2429 (2016), that a suit to enjoin the imposition of a reporting requirement is barred by the Anti-Injunction Act when that reporting requirement is barred by a penalty included in Subchapter 68B of the Code, i.e., when that penalty is expressly identified by the Code as a “tax.” There, the court held that the Anti-Injunction Act barred a challenge to Treasury regulations under I.R.C. § 6049, which required U.S. banks to report the amount of interest earned by nonresident alien individuals or be subject to a penalty that was expressly treated as a “tax” under I.R.C. § 6671. The court stressed that “in NFIB, the Supreme Court unequivocally confirmed that these penalties in Chapter 68, Subchapter B are 'treated as taxes under Title 26, which includes the Anti-Injunction Act.” Id. at 1069 (quoting from NFIB, 567 U.S. at 544-545 (emphasis added by court)). The D.C. Circuit accordingly held that “[i]nvalidating the regulation would directly bar collection of that tax. This case is therefore at the heartland of the Anti-Injunction Act.” Id. at 1069-1070.

Likewise, even before NFIB, in Foodservice & Lodging Inst., Inc. v. Regan, 809 F.2d 842, 843-844 (D.C. Cir. 1987), the court held that the Anti-Injunction Act barred challenges to two regulations affecting the tip income to be reported by, or allocated to, employees under I.R.C. § 6053. The violation of those regulations (i.e., “the allocation requirement” in Treas. Reg. § 31.6053-3(f)(1) and “the ten-employee rule” in Treas. Reg. § 31.6053-3T(j)(9)) was also subject to a penalty under I.R.C. § 6678(a)(3)(E) that, as was the case in Florida Bankers, was treated as a “tax” under I.R.C. § 6671. 809 F.2d at 844-845. Those regulations, the court in Foodservice & Lodging observed, “plainly concern[ed] the assessment or collection of federal taxes.”¹²

The same analysis applies in this case, where Notice 2016-66 has triggered disclosure requirements. Here, too, the penalties established by Sections 6707 and 6708 for a material advisor's failure to disclose a reportable transaction and to keep a customer list under Sections 6111 and 6112, respectively, are “taxes” within the meaning of the Anti-Injunction Act. Those penalties are found in Subchapter B of Chapter 68 of the Internal Revenue Code (26 U.S.C.), relating to assessable penalties. That placement brings to bear Section 6671(a), which provides that, unless otherwise provided, any penalty under Subchapter 68B is a “tax” for purposes of any provision of Title 26, which includes the Anti-Injunction Act. The penalties under Sections 6707 and 6708 are therefore “taxes” for purposes of the Anti-Injunction Act under the Supreme Court's statutory analysis in NFIB. This understanding of NFIB accords not only with that of the D.C. Circuit in Florida Bankers, but also with the decisions of other courts of appeals. See Hotze v. Burwell, 784 F.3d 984, 997 (5th Cir. 2015), cert. denied, 136 S. Ct. 1165 (2016); Liberty Univ., Inc. v. Lew, 733 F.3d 72, 88-89 (4th Cir. 2013); see also LNV Corp. v. Hook, No. 14-1438, 2015 WL 4927014, at *4 (10th Cir. Aug. 19, 2015).

Plaintiff's bid to obtain pre-enforcement judicial review of reporting requirements, if successful, would have profound implications for the assessment and collection of taxes. Information returns are a cornerstone of tax administration. There are literally scores of information return requirements, including, for example, the obligation of a trade or business to report payments to third parties, I.R.C. § 6041, and of an employer to report employee wages, I.R.C. § 6051. Violations of these reporting requirements generally are subject to an addition to tax, I.R.C. § 6652, or an assessable penalty under Subchapter 68B, and further are integral to the assessment and collection of tax from third parties. Accordingly, courts have routinely barred challenges to reporting requirements outside of refund suits. See, e.g., Mobile Republican Assembly v. United States, 353 F.3d 1357, 1362 (11th Cir. 2003) (barring challenge to disclosure condition contained in I.R.C. § 527(j) on the exclusion for campaign-related income of political organizations); Debt Buyers' Ass'n v. Snow, 481 F. Supp. 2d 1, 9 (D.D.C. 2006 (barring challenge to debt-discharge reporting requirement imposed by Treasury regulations under I.R.C. § 6050P and enforceable by an assessable penalty under I.R.C. § 6724); Crouch v. Commissioner, 447 F. Supp. 385 (N.D. Cal. 1978) (precluding suit to enjoin preparer requirement under I.R.C. § 6109(a)(4) that a return disclose the preparer's tax identification number, enforceable by I.R.C. § 6695(c) penalty); California v. Regan, 641 F.2d 721, 722 (9th Cir. 1981) (precluding State's bid to enjoin duty to file an information return under I.R.C. § 6058, enforceable by I.R.C. § 6652 penalty). Although plaintiff relies (Br. 40) on Nat'l Rest. Ass'n v. Simon, 411 F. Supp. 993, 996 (D.D.C. 1976), where the court permitted a challenge to a tip reporting requirement despite the availability of a refund suit to challenge an associated penalty under I.R.C. § 6652, that decision is against the weight of authority, and should not be followed here.

It is unavailing for plaintiff to contend (Br. 29) that it is challenging only the underlying reporting requirement, not the tax through which it is enforced. (See also Br. 21-25). There is no basis for focusing on the reporting requirement to the exclusion of the tax that potentially flows from it. On the contrary, “[a] court must look to the effect the requested relief would have on the assessment or collection of taxes.” See Jericho Painting & Special Coating v. Richardson, 838 F. Supp. 626, 629 (D.D.C. 1993) (emphasis in original). “To hold otherwise would enable ingenious counsel to so frame complaints as to frustrate the policy or purpose behind the Anti-Injunction statute.” Blech v. United States, 595 F.2d 462, 466 (9th Cir. 1979). The critical fact remains that “invalidating the regulation would directly prevent collection of the tax” through which the reporting requirement is enforced. Florida Bankers, 799 F.3d at 1071. As a result, invalidating the reporting requirement “would directly bar collection of that tax.” Id. at 1069. This case, like Florida Bankers, is therefore “at the heartland of the Anti-Injunction Act.” Id. at 1069-1070. As a result, the District Court correctly held that plaintiff's suit is barred by the Anti-Injunction Act.

B. Plaintiff's counterarguments are unavailing

1. Plaintiff's Direct Marketing argument fails

Plaintiff contends (Br. 17) that the decision below conflicts with Direct Marketing Ass'n v. Brohl, 135 S. Ct. 1124 (2015). That contention lacks merit for the reasons given by the District Court and by the court of appeals in Florida Bankers. First, even assuming Direct Marketing narrowed the scope of the Anti-Injunction Act, the Act would nonetheless bar this lawsuit. Second, Direct Marketing did not narrow the scope of the Anti-Injunction Act.

In Direct Marketing, the Supreme Court construed the Tax Injunction Act, 28 U.S.C. 1341. The Tax Injunction Act provides that federal district courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” where a “plain, speedy and efficient remedy” is available in the State's courts. The Court held that the Tax Injunction Act did not bar a suit in federal court to enjoin the enforcement of Colorado laws requiring out-of-state retailers that do not collect Colorado sales or use taxes to notify Colorado customers of their tax liabilities and to report tax-related information to customers and the State. The Court rejected the broad, ordinary meaning of the word “restrain” in the Tax Injunction Act, to “limit, restrict or hold back,” in favor of its narrower meaning, “'to prohibit from action; to put compulsion upon . . . to enjoin.'” Direct Marketing, 135 S. Ct. at 1132 (citation omitted). The Court looked to the company “restrain” keeps in the Tax Injunction Act, namely the equitable remedies “enjoin” and “suspend,” as evidence of its meaning, explaining that “[t]he statutory context . . . lead[s] us to conclude that the [Tax Injunction Act] uses the word 'restrain' in its narrower sense.” Id.

Even assuming that the word “restraining” in the Anti-Injunction Act also carries only the narrower meaning — i.e., “'to prohibit from action; to put compulsion upon . . . to enjoin,'” id. at 1132 (citation omitted) — it would bar this lawsuit. The §§ 6707 and 6708 penalties are themselves taxes for purposes of the Anti-Injunction Act. Thus, striking down the Notice in this case would “have the effect of restraining — fully stopping — the IRS from collecting” those penalties. Maze, 862 F.3d at 1092. The situation here is accordingly unlike that presented in Direct Marketing, where the use taxes were still reportable by taxpayers and collectible by the State without the help of the third-party reporting requirements challenged in the action. Granted, any underpayment of tax arising from the abuse of micro-captive insurance companies could still conceivably be assessed and collected, if detected by the IRS outside of the “reportable transactions” disclosure scheme. Assessment of the §§ 6707 and 6708 liabilities themselves, however, would be enjoined, as noted above. As three concurring justices emphasized in Direct Marketing, the Court in that case did not address whether the Tax Injunction Act bars federal courts from entertaining “a suit to enjoin reporting obligations imposed on a taxpayer . . . in lieu of a direct challenge to an 'assessment,' 'levy,' or 'collection'” of that taxpayer's own tax liability. 135 S. Ct. at 1136 (Ginsburg, J., concurring) (emphasis added).

Additionally, courts have found that the text of the Anti-Injunction Act, which prohibits a suit in any court “for the purpose of restraining the assessment or collection of any tax,” differs from that of the Tax Injunction Act in material respects. See, e.g., Green Solution Retail, Inc. v. United States, 855 F.3d 1111, 1119-1120 (10th Cir. 2017), cert. denied, 138 S. Ct. 1281 (2018); Florida Bankers, Ass'n v. U.S. Dep't of Treasury, 799 F.3d 1065 (D.C. Cir. 2015), cert denied, 136 S. Ct. 2429 (2016). Unlike the Tax Injunction Act, the Anti-Injunction Act does not also contain the words “enjoin” or “suspend,” nor does it prohibit district courts from granting specific forms of equitable relief. Rather, the prohibition contained in the Anti-Injunction Act begins with the words “[n]o suit for the purpose of restraining,” which, as discussed above, puts the focus on the purpose of the suit, not the relief requested. That purposive focus, along with the fact that, in the Anti-Injunction Act, “restraining” stands alone (rather than being coupled with the words “enjoin” or “suspend,” as in the Tax Injunction Act), means that the Anti-Injunction Act should not be construed in the same way. Green Solution Retail, 855 F.3d at 1119-1120 (rejecting a marijuana dispensary's reliance on Direct Marketing and holding that the Anti-Injunction Act barred a suit to enjoin the IRS from investigating its business records).

To be sure, the Supreme Court has assumed that words in both acts are “generally” used in the same way. Direct Marketing, 135 S. Ct. at 1129. This holds true for terms borrowed from federal tax law, such as “assessment,” “levy,” and “collection” in the Tax Injunction Act, as to which the Court looked to the Code for guidance. Id. at 1129-1131. But “restrain” is not a term of art borrowed from the Code. It therefore takes its meaning from the context in which it appears, which markedly differs in the Anti-Injunction Act and Tax Injunction Act.

Moreover, in Direct Marketing, no party contended that the penalty that Colorado used to enforce those requirements, see 135 S. Ct. at 1128, was itself a “tax” within the meaning of the Tax Injunction Act. Here, by contrast, the penalties through which the reporting requirements are enforced are “taxes” within the meaning of the Anti-Injunction Act. See p. 40, supra. Because plaintiff's suit, if successful, would bar collection of that tax, the court below correctly held that Direct Marketing is not controlling.¹³

Even if the textual differences between the Tax Injunction Act and Anti-injunction Act were less significant, it would be inappropriate to conclude that Direct Marketing upended long-standing Anti-injunction Act jurisprudence by implication. The Supreme Court has long recognized that the Anti-Injunction Act bars suits that seek to inhibit — even indirectly — the assessment or collection of federal tax. See pp. 32-33, supra. It scarcely can be regarded as having overruled its own jurisprudence regarding the Anti-Injunction Act in Direct Marketing without even citing any of its opinions on the Anti-Injunction Act. This Court should decline to extrapolate from Direct Marketing new limits on the scope of the Anti-Injunction Act.¹⁴

2. The grant of jurisdiction in the APA does not supersede the Anti-Injunction Act

Plaintiff also contends (Br. 30) that the “District Court's broad interpretation of the AIA . . . creates an unnecessary conflict between the AIA and the APA,” and argues (Br. 32) that “[i]f one statute must take the backseat to the other, it must be the AIA.” The amicus echoes this position, making a policy argument (Am. Br. 20-23) that the APA should be construed to supersede the Anti-Injunction Act. To the contrary, under the plain language of 5 U.S.C. § 702, and consistent with the original understanding of that provision, any tension between the Anti-Injunction Act and the APA must be resolved in favor of giving precedence to the Anti-Injunction Act.

Although § 702 waives sovereign immunity for certain claims, it further provides that “[n]othing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” And 5 U.S.C. § 701(a)(1) makes it clear that the APA does not waive sovereign immunity where “(1) statutes preclude judicial review.”

The Anti-Injunction Act and the tax exception to the Declaratory Judgment Act are the prime examples of what Congress meant, by referring to situations where other statutes preclude review, when it amended the APA in 1976 to partially abolish sovereign immunity. See An Act to amend chapter 7, title 5, United States Code, with respect to procedure for judicial review of certain administrative agency action, and for other purposes, Pub. L. No. 94-574, 90 Stat. 2721 (Oct. 21, 1976). The legislative history makes this clear. H.R. Rep. No. 94-1656 at 12 (1976) (singling out the AIA and DJA as unaffected by § 702). Indeed, Congress considered the tension between the Anti-Injunction Act and the APA and, in part at the urging of then-Assistant Attorney General Antonin Scalia, adopted the present language of the final sentence of 5 U.S.C. § 702 to ensure that the Anti-Injunction Act would predominate. See H.R. Rep. No. 94-1656, 27 (“Exhibit C”), reprinted at 1976 U.S.C.C.A.N. 6121, 6146 (Sept. 22, 1976).

The House Judiciary Committee Report also made explicit the Committee's understanding that it read the statute that way, so that the bar of Anti-Injunction Act would contain the jurisdictional grant of the APA. As the Committee explained, “[s]tatutory or rule provisions denying authority for injunctive relief (e.g., the Anti-Injunction Act, 26 U.S.C. section 7421, and 28 U.S.C. section 2201, prohibiting injunctive and declaratory relief against collection of federal taxes) . . . remain unchanged.” H.R. Rep. No. 94-1656, at 12, reprinted at 1976 U.S.C.C.A.N. at 6133-34. See also id. at 13, 1976 U.S.C.C.A.N. at 6133 (“the partial abolition of sovereign immunity brought about by this bill does not change existing limitations on specific relief, if any, derived from statutes dealing with such matters as . . . tax claims”) and related n.36, id. 30, 1976 U.S.C.C.A.N. at 6150 (giving the Anti-Injunction Act as the example).

Accordingly, the courts have concluded that 5 U.S.C. § 702 does not override the bar of the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act. We the People Foundation v. United States, 485 F.3d 140, 142 (D.C. Cir. 2007); Hughes v. United States, 953 F.2d 531, 537 (9th Cir. 1992); Fostvedt v. United States, 978 F.2d 1201, 1203-1204 (10th Cir. 1992); Smith v. Booth, 823 F.2d 94, 97 (5th Cir. 1987). Instead, Congress intended to preclude review of matters of tax administration outside the express channels for tax litigation it created. After all, the APA “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (internal quotation marks omitted). The Second Circuit, for example, held very recently that a suit for refund of an I.R.C. § 6707 penalty after full payment is a “special and adequate review procedure[ ],” and it also opined that Congress “implicitly precluded prepayment judicial review” under 5 U.S.C. § 702(2). Larson v. United States, 888 F.3d 578, 588 (2d Cir. 2018), aff'g 2016 WL 7471338 (S.D.N.Y. Dec. 28, 2016).

In asserting that the APA predominates (Br. 33-38), plaintiff fails to come to grips with the Congressional design confining tax litigation to specific statutory remedies — here, a suit for refund. For purposes of the §§ 6707 and 6708 penalties, the penalties are taxes and plaintiff is a taxpayer within the meaning of the Anti-Injunction Act. Because plaintiff is the taxpayer with respect to those penalties, its attempts (Br. 34-35) to distinguish Green Solution Retail, supra, and Maze v. IRS, supra, both applying the Anti-Injunction Act against recent attempts by taxpayers to enjoin IRS actions possibly leading to assessment, fall flat. Here, no less than in those cases, plaintiff (in its own words, Br. 35) “seeks to use pre-enforcement injunctive relief to litigate its individual tax status.” Plaintiff's position is therefore out of step with the plain language of 5 U.S.C. § 702 and the mainstream of judicial interpretation, both of which counsel that where it applies, the jurisdictional bar of the Anti-Injunction Act forecloses review under the APA.¹⁵

3. The South Carolina v. Regan exception to the Anti-Injunction Act does not apply here

Plaintiff contends (Br. 44) that it lacks any “meaningful alternative remedy” to challenge the reporting requirements and therefore that their suit should be permitted under South Carolina v. Regan, 465 U.S. at 380-81. The District Court correctly rejected this contention.

In South Carolina, the Supreme Court created a narrow exception to the Anti-Injunction Act, holding that it does not bar a suit “where . . . Congress has not provided the plaintiff with an alternative legal way to challenging the validity of a tax.” 465 U.S. at 373; see id. at 378-380. In that case, the State complained that taxing income from unregistered bearer bonds under § 103(j)(1) impinged upon its own Tenth Amendment power to raise money by issuing tax-free bonds. The registration requirement, which detracted from the marketability of unregistered bonds, had the practical effect of forcing the State to issue its obligations in registered form. But since the State did not bear the tax itself, it lacked the remedies available to a taxpayer. The Supreme Court's ruling hinged upon the unfairness of the State's having to rely upon a friendly bondholder's challenge to the tax in order to vindicate its Tenth Amendment right, which was distinct from any right of the bondholder's. 465 U.S. at 371-72. Because the State had no alternative remedy, the Court held the Anti-Injunction Act did not bar the State's suit.

But as this Court has explained, “this exception is very narrow. 'Because of the strong policy animating the Anti-Injunction Act, and the sympathetic, almost unique, facts in [South Carolina], courts have construed the [South Carolina] exception very narrowly, undermining [plaintiff's] efforts to fit its own claims within the confines of this exception.'” RYO Machine, 696 F.3d at 472, quoting from Judicial Watch v. Rossotti, 317 F.3d 401, 408 n.3 (4th Cir. 2003) (citations omitted and editorial insertions the Court's); see Ambort v. United States, 392 F.3d 1138, 1140 (10th Cir. 2004); American Soc'y of Assoc. Executives v. Bentsen, 848 F. Supp. 245, 250 (D.D.C. 1994) (noting that the exception “is a narrow one tailored to the unique factual pattern in that case”); but see Z Street v. Koskinen, 791 F.3d 24, 31-32 (D.C. Cir. 2015) (suit alleging discriminatory delay in processing of application for exemption fell within South Carolina exception where it was brought during the 270-day waiting period before organization could seek judicial declaration of such status under I.R.C. § 7428). The Court in South Carolina emphasized that the State would have lacked any alternative means of obtaining judicial review of its constitutional challenge if the Anti-Injunction Act were held to bar its suit. See 465 U.S. at 373, 378-380. The Court contrasted that situation with prior cases in which the plaintiffs had “the alternative remedy of a suit for a refund.” Id. at 374; see id. at 374-376.

In this case, the District Court premised its holding on the fact that an alternative remedy is available in the form of a refund suit. (Memorandum opinion, RE No. 35, Page ID # 594-95.) Rather than comply with the reporting requirement imposed by Notice 2016-66, plaintiff may withhold the information or refuse to produce the advisee list upon request, pay the penalties imposed, file claims for refund, and if those claims are denied or are not acted on within six months, sue for a refund in a district court or the Court of Federal Claims. See I.R.C. §§ 6511, 6532(a)(1), 7422; 28 U.S.C. §§ 1346(a)(1), 1491. Because plaintiff has this remedy, while South Carolina did not, plaintiff is by no means in the same position. It is requesting a significant — and unwarranted — extension of the exception.

The preference for resolving legal challenges to federal taxes in refund suits, where that mode of judicial review is available, reflects the basic design of the Anti-Injunction Act. See NFIB, 567 U.S. at 544; Bob Jones, 416 U.S. at 736. Plaintiff does not appear to dispute that the alternative mode of review identified by the court below is legally available here. It contends (Br. 40), however, that paying the penalty and suing for a refund is not a practically feasible alternative because breach of the disclosure requirements imposed by §§ 6111 and 6112 could subject it to onerous consequences beyond the §§ 6707 and 6708 penalties themselves, such as a criminal sanction under I.R.C. § 7203, if the challenge to the reporting requirement ultimately fails.

Plaintiff identifies no decision in which the South Carolina exception to the Anti-Injunction Act has been held applicable despite the legal availability of a refund suit. It contends, however (Br. 39), that the remedy is not unavailable, but “nonsensical” here “for several reasons.” First of these, according to plaintiff (Br. 40), is the assertion that “[r]egulated parties ought not to be forced to violate the law, incur penalties, and suffer contempt proceedings to obtain judicial review of agency action.” But plaintiff ignores that the penalties here are merely the taxes imposed by I.R.C. §§ 6707 and 6708. And where taxes are concerned, the sine qua non of the Anti-Injunction Act is to require taxpayers to pay first and litigate their dispute in a suit for refund.

Moreover, it is not clear whether a criminal sanction could properly be imposed on a material advisor that failed to provide the required information, but promptly paid the penalty and commenced a refund suit, thereby demonstrating a good-faith intent to submit its challenge for judicial resolution and to abide by the court's decision. Notably, for a violation not involving a listed transaction (and none is at issue here, since the designated micro-captive insurance transaction is only a transaction of interest), the § 6707 penalty itself is subject to rescission if doing so would promote effective tax compliance. I.R.C. § 6707(c). And the § 6708 penalty, which is not imposed until 20 days after a requested customer list has not been produced, is subject to remission for reasonable cause. I.R.C. § 6708(a)(2). The potential for a criminal penalty could depend upon whether rescission or remission would apply in criminal cases as well, and whether the violation would still be considered willful despite the course of action, described above, that includes prompt payment and suing for refund in good faith.

At all events, the Supreme Court has already indicated that, even when a “regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance,” a statute may bar access to the courts. Abbott Laboratories v. Gardner, 387 U.S. 136, 153 (1967) (stating that “access to the courts . . . must be permitted, absent a statutory bar”). Statements to the contrary, e.g., “[w]e normally do not require plaintiffs to 'bet the farm,'” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 490 (2010) (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007)), relied upon by the amicus (Am. Br. 24), are grounded in the jurisdictional grant of the Declaratory Judgment Act itself — which Act, the Court has held, was enacted for “the very purpose” of “ameliorat[ing]” this “dilemma.” MedImmune, 549 U.S. at 129 (quoting Abbott Laboratories, 387 U.S. at 152). Amicus ignores that Congress made the express legislative judgment to except tax cases from the Declaratory Judgment Act and its policy choice stands.

Plaintiff argues (Br. 44) that the tax exception to the Declaratory Judgment Act prevents courts in tax refund suits from stating what the law is, so that the result of one refund suit will have no effect on any other taxpayer. This effect, however, derives not from the Declaratory Judgment Act, but from the fact that nonmutual collateral estoppel is not available against the United States. United States v. Mendoza, 464 U.S. 154, 162 (1984). If (equitable jurisdiction existing) the IRS were to flout controlling legal precedent in the “blatantly illegal[ ]” manner described by plaintiff (Br. 44), such that it was “clear that under no circumstances . . . the Government ultimately [could] prevail” in court its actions could be enjoined, notwithstanding the Anti-Injunction Act. Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962). But plaintiff does not even invoke the Williams Packing exception.

Plaintiff's remaining objections are objections to the refund suit as a remedy. As it points out, a refund suit cannot be brought immediately, and the taxpayer must first ask the IRS for a refund before bringing suit (since doing so might save the courts the trouble if the IRS grants the requested refund administratively). (Br. 42.) But such objections have been made by many other taxpayers in the 150 years since Congress adopted the Anti-Injunction Act. The courts nevertheless have enforced the Act and required the taxpayers to pay the tax and sue for a refund.

Plaintiff misplaces its reliance on Larson, supra, to argue that penalties under § 6707 (not, as plaintiff mistakenly states (Br. 42), § 6707A) may be prohibitively large. The penalty in Larson was imposed under the prior version of § 6707 (1997), which was calculated “based on the aggregate amount invested in the shelter,” and therefore was not divisible for purposes of the full-payment rule of Flora v. United States, 362 U.S. 145, 175 (1960). See Larson, 888 F.3d at 583 n.6. As plaintiff here emphasizes, the present § 6707 penalty (2004) is imposed “for each incorrect or untimely disclosure” (Br. 42), making them presumably divisible. See Flora, 362 U.S. at 175 (“excise tax deficiencies may be divisible into a tax on each transaction or event. . . .”). And rather than the $61 million at issue in Larson, 888 F.3d at 589, it appears that under present law, the amount that must be paid to provide jurisdiction for a refund suit involving a non-listed transaction is only $50,000. I.R.C. § 6707(b)(1). Again, this amount is applicable only to those who have earned more than $250,000 advising with regard to the transaction at issue ($50,000 if substantially all of the benefits of the transaction accrue to natural persons).¹⁶ I.R.C. § 6111(b)(1)(B). The availability of such a refund suit satisfies the requirements of due process. Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931).

CONCLUSION

The judgment of the District Court should be affirmed.

Respectfully submitted,

RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General

TRAVIS A. GREAVES
Deputy Assistant Attorney General

GILBERT S. ROTHENBERG (202) 514-3361
TERESA E. MCLAUGHLIN (202) 514-4342
BETHANY B. HAUSER (202) 514-2830
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044

Of Counsel:

J. DOUGLAS OVERBEY
United States Attorney

MAY 2018