Optimal

Answer 1

Best Evidence of Congress’s intention is the “Label” that it used.

Question 2

Harmonize provisions.

Answer 2

Government proposes to equat “assessable payment” with “tax”.

Fails to address textual descriptions of 4980H exaction as a “penalty.”

Question 3

“Assessable payment”

Answer 3

Congress used the phrase seven times.

Question 4

Issue

Answer 4

Is the Section 4980H Exaction subject to the Anti-Injunction Act?

Question 5

The government claims that Congress described the exaction in two ways: as an assessable payment, and as a tax.

Answer 5

This description conspicuously fails to harmonize. Congress is other description of the exaction: as a penalty. In ACA section 1411 F2B.

Question 6

Why is congress is description of the exaction as a tax not dispositive?

Answer 6

Congress, through the joint committee on taxation, also describe the section 5000 a exaction as a tax. But the supreme court in NFRB nonetheless held that there was not a clear congressional intention to bring the exaction under the anti-injunction act.

Question 7

Does the court only look to Weather section 7421 is clear about jurisdictional affect?

Answer 7

No.

The supreme court was clear in NFIB that the court looks “to the text of the pertinent statutes. Page 543.

But even if the court did only look to section 7421, that statute is not clear that it has a jurisdictional effect here. It provides an exception that is directly on point: the anti-injunction act does not apply where the government attempts to assess a tax under chapter 43, without first issuing a notice of deficiency.

Answer 8

Congresses use of the term tax in section 4980 HC7 clarifies that the employers expenditure is not deductible to the employer. Without that clarification, employers would likely have claimed the expenditure as an ordinary and necessary trade or business expense under section 162.

Answer 9

The government points to the use of the word tax in 42 USCIS section 18 081F to pay. How ever feels to point out that the very next provision labels the accessible payment a penalty. The same term that in F I be included demonstration that the section 5000 a exact and was outside of the scope of the entire injection act.

Question 10

Notcie of Deficiency Required - Summary Argument

Answer 10

The IRS is required to issue a notice of deficiency before making an assessment of tax imposed by chapter 43 of title 26. Section 6212 a, 62138. Section 4980 H is found in chapter 43 of title 26.

Either the 4980 H exaction is a penalty in which case the anti-injunction act does not apply or is a tax that is clearly subjective officially procedures that were not followed, in which case the anti-injunction act does not apply.

Question 11

What is a deficiency?

Answer 11

Section 6211 a provides that a definition for deficiency. Treasury regulations under section 301.6211–1 a specifically define a deficiency were no tax return is filed. In that case, it defines a deficiency as the amount owed or imposed by chapter 43.

Question 12

Structural Analysis (ACA) - Designations as Taxes

Answer 12

The final title of the ACA, title nine quotation revenue provisions and quotation contains a list of provisions that are expressly titled and described as taxes, consistent with their description as revenue provisions. ACA section 9001 and asked an excise tax. Section 9000 for a men’s an additional tax on certain distributions.

Indeed, the ACA imposes several exactions that it specifically provides are subject to the anti-injunction act. For example, section 9009 one. And 9008F1.

Question 13

Structural Analysis (ACA) - Specific provisions not subject to judicial review

Answer 13

In addition, Congress showed that he knew how to remove various determinations from judicial review in a clear and unambiguous man do so. For example, section 3181 provides that there is no administrative or judicial review for certain provisions. We have listed a litany of similar provisions on pages 24 and 25 of our opening brief.

Question 14

No adequate remedy at law.

Answer 14

And it’s complete, optical sought declarations under the APA including the HHS and the IRS must follow the statutory and procedural requirements of the ACA.

It’s on regulations, the HHS previously conceded that it is not within the discretion of the secretary of HHS to shift responsibility for provision of the section 1411 certification to any other party, including the IRS. 77SR 18 357

Question 15

Government’s position creates an anomaly.

Answer 15

In Burwell versus hobby lobby, stores, the Supreme Court acknowledged that both section 4980 D and 4980 H are component parts of a single regulatory scheme that penalize employers who failed to comply with the employee mandate. However, in Burwell, the government did not argue that the anti-injunction act apply to section 4980 D even though the employer shared responsibility payments required by section 4980 D is plainly labeled a tax.

Question 16

Functional (summary)

Answer 16

The employer shared responsibility. Payment was not intended to secure a consistent stream of revenue. Indeed, the essence of the employer shared responsibility. Payment is in was a regulatory penalty. If the employer shared responsibility, payment worked perfectly, it would raise precisely zero dollars.

Answer 17

Size. The sheer size of the required payment indicates that it is a penalty.

Not based on how bad violation. The amount of the fine for violating section 4980 H is the same regardless of how significantly the offered healthcare plan deviate from the ACA’s requirements.

Unrelated to number of employees enrolled. Amount is unrelated to the number of employees who are enrolled in a qualified plan, and receive a tax credit from the government. The amount is based solely on the number of full-time employees and employer has, regardless of whether or not, they actually enroll in a qualifying healthcare plan.

Question 18

Halbig

Answer 18

Careful reading of the hell big cases in the DC circuit rules makes clear that the only DC circuit court paneled to address the very issue presented here previously rejected the government position and held at the anti-injunction. I did not apply against an employer challenging a section 4980 H exaction. The panel opinion there for remains the law of the circuit.

Question 19

DC Rules - Halbig

Answer 19

While judgment was vacated, the opinion in helping two was not vacated. Under DC circuit rule 35D an order, granting in bank review vacate the panels judgment, but ordinarily not its opinions. The petition for rehearing in bulk did not have a single reference to the entire injunction it.

Question 20

Halbig explanation

Answer 20

In reversing, how big one on other grounds, the court of appeals panel, and helping to implicitly rejected the district, courts reasoning that the shared responsibility payment is a tax and how big one, the employer defendants claims were dismissed based on the anti-injunction act. Notably, the panel, and reversing how big one, I ordered the District Court grant summary judgment to all of the appellant’s. This included the employer defendants whose claims have been dismissed under the anti-injunction act. But the Court of Appeals would not have had jurisdiction to provide for such a relief if the employer mandate was a tax within the meaning of the anti-injunction act, because such a characterization would have to private the court of jurisdiThat’s the district court circuit court of appeals, for DC has already implicitly rejected position of the government. Ask the court to take care.

Question 21

Read and compare it against section 5000 a, the individual mandate, and the supreme courts holding an NFIB.

Answer 21

The supreme court held in NFIB, that the affordable care act does not require that the penalty for failing to comply with the individual mandate under section 5000 a be treated as a tax for purposes of the anti-junction at.

Section 5000 in a is littered with references to tax payers, tax years, and an array of tax concepts, framing the contacts within which the supreme court found the anti-injunction act not to apply to section 5000 A.

Notably, the Supreme Court found that it was inconsequential that the provision:

was located in the internal revenue code,

referred to throughout the payor as a taxpayer,

required payment of the individual mandate in conjunction with the filing of the taxpayers tax return, and

computed the individual mandate on the basis of items to find elsewhere in title 26 which is gross income and modified adjusted gross income.

Question 22

COmponent Parts

Answer 22

In Burwell versus hobby lobby, stores, the Supreme Court acknowledged that both section 4980 D and 4980 H are component parts of a single regulatory scheme that penalize employers who failed to comply with the employee mandate. However, in Burwell, the government did not argue that the anti-injunction act apply to section 4980 D even though the employer shared responsibility payments required by section 4980 D is plainly labeled a tax.

Answer 23

The appeals process must provide the employer with the opportunity to present information to HH asked for its initial review of the penalty determination and have access to the data used by HHS to make its initial determination. Section 18 081F to a title 42.

Answer 24

The relevant statutory language in the governing regulations make clear that HHS must make the section 1411 certification. The governments own regulations provided that it is not within the discretion of the secretary of HHS to shift responsibility for provision of the section 1411 certification to any other party, including the IRS. 77FR at 18 357.

Answer 25

HHS never made a section 1411 certification with respect to plaintiffs. HHS never provided plaintive with an HHS administrative appeals so that plaintive could have the opportunity to dispute the penalty determination and review date of the HHS has relevant to the penalty determination.

Answer 26

Technically, the IRS imposed a penalty under section 4980 HA. There are two distinct types of penalties under 4980 H. Note that only subsection B ever refers to the payment as a tax.

Answer 27

Single unexplained use of the term tax, cannot overcome the fact that Congress generally referred to the exaction as an assessable payment, or even a penalty