[00:00:00] Speaker 01: case number 25-51. [00:00:10] Speaker 01: Mr. Joshi, please proceed when you're ready. [00:00:19] Speaker 06: Good morning. [00:00:20] Speaker 06: May it please the court. [00:00:21] Speaker 06: I'm Andan Joshi for the appellants. [00:00:24] Speaker 06: Congress enacted section 6103 I of the Internal Revenue Code to limit law enforcement access to confidential taxpayer records. [00:00:33] Speaker 06: That provision generally requires prosecutors to obtain a court order to access information in a particular taxpayer's IRS filings. [00:00:42] Speaker 06: Here, however, the district court held that 6103 I2 allowed the IRS to disclose millions of taxpayer addresses to ICE without a court order. [00:00:52] Speaker 06: That was error. [00:00:54] Speaker 06: I too is not designed to give law enforcement easy access to taxpayer addresses without a court order. [00:01:00] Speaker 06: It assumes that law enforcement already has the taxpayers address and will provide it to the IRS to obtain access to third party sources of information. [00:01:10] Speaker 06: So the way 6103 I works is that there are a set of documents within the IRS that are independent of information the taxpayer submits to the IRS, for example, in their 1040 or in their W-7 application for an ITIN number. [00:01:28] Speaker 06: These might arise from an IRS investigation. [00:01:32] Speaker 06: into a third party where they obtain information. [00:01:36] Speaker 06: They might arise from a police raid, for example. [00:01:38] Speaker 06: That's one of the examples the IRS gives in its manual, where the information comes from a third party, not voluntarily from the taxpayer. [00:01:48] Speaker 02: I'm sorry. [00:01:49] Speaker 02: I just have some questions about how this works. [00:01:51] Speaker 02: Does it include when your bank sends in information about your interests or when your employer reports your income? [00:02:00] Speaker 06: So if your bank or employer sends in information about you, that would be protected information. [00:02:06] Speaker 06: That'd be taxpayer return information. [00:02:09] Speaker 02: Even though it's submitted by the court. [00:02:11] Speaker 06: Yes, it's by or on behalf of the taxpayer. [00:02:13] Speaker 02: But if the employer shows its address or the bank shows its address, that's not protected information. [00:02:20] Speaker 02: I'm sorry. [00:02:21] Speaker 02: So presumably in sending this in, the bank is going to reveal its own address or the employer will reveal its own address that's not protected. [00:02:30] Speaker 06: Yes, I don't believe that is not protected as to the individual taxpayer might be protected as to the bank. [00:02:38] Speaker 06: However, for example, if the information comes to the IRS involuntarily of the taxpayer, if it's seized in a police raid for the police raid, [00:02:48] Speaker 06: a business on a RICO case. [00:02:50] Speaker 06: Somehow those business records end up at the IRS. [00:02:53] Speaker 06: Some other law enforcement agency, if it knows of that, can use I-2 to get access to those records if it follows the procedure set out in I-2. [00:03:05] Speaker 02: Those are not- All of those records, including, say they have copies of the W-2s for [00:03:12] Speaker 06: Yeah, that's the IRS's position. [00:03:14] Speaker 06: I don't know that it's been litigated. [00:03:15] Speaker 06: That's the IRS's position. [00:03:18] Speaker 06: 6103 distinguishes between taxpayer return information and other types of return information. [00:03:24] Speaker 06: The underlying purpose when it was enacted in 76, [00:03:31] Speaker 06: was to encourage people, taxpayers, to voluntarily participate in the tax system. [00:03:38] Speaker 06: There is, of course, penalties for not participating in the tax system, but Congress said in the wake of the Nixon scandal said that's not sufficient. [00:03:45] Speaker 06: We want to preserve the integrity of the tax system by saying when we force you, taxpayer, to submit this information, we're going to protect it as if that information were in your own home. [00:03:58] Speaker 06: And we're going to require a court order if law enforcement wants to get that information. [00:04:02] Speaker 06: And they have various provisions for that. [00:04:05] Speaker 06: A1 is the primary one for criminal investigations. [00:04:09] Speaker 06: I'm sorry, I1. [00:04:12] Speaker 06: I5 was enacted in 82. [00:04:13] Speaker 06: That says prosecutors have to get a court order to get the location of a fugitive from justice. [00:04:21] Speaker 06: And the IRS took the same position for a long time saying, [00:04:25] Speaker 06: law enforcement cannot use I2 to get these types of addresses. [00:04:30] Speaker 06: Law enforcement must provide us the name and address of the taxpayer in order to get this third party information if it exists for a particular taxpayer. [00:04:40] Speaker 06: The type of information you're talking about, many taxpayers may not even have the third party information because they're not going to be investigated by the IRS or have [00:04:50] Speaker 06: you know, independent sources of information. [00:04:54] Speaker 06: But what the IRS did here in response to the new administration's immigration agenda is say, we're going to rethink what I-2 means. [00:05:04] Speaker 04: And now... And they're basing their rethinking on I-2C because I-2C does have a carve out for that. [00:05:11] Speaker 04: It does. [00:05:12] Speaker 04: It does. [00:05:12] Speaker 04: So, I mean, nobody disputes that if [00:05:16] Speaker 04: information is sought outside of taxpayer identity and taxpayer identity is disclosed as it can be, as it must be actually under ITC, then that taxpayer identity information can be used in the way that it's sought to be used here, as long as the request actually was accompanied by a request seeking other information. [00:05:36] Speaker 06: I think that's basically right. [00:05:38] Speaker 06: The one caveat I would say is [00:05:41] Speaker 06: Congress's premise in allowing that type of disclosure, because initially it didn't allow that disclosure. [00:05:47] Speaker 06: In 76, it did not allow that disclosure. [00:05:49] Speaker 06: And then in 78? [00:05:50] Speaker 06: There was a technical fix in 78 because the theory is law enforcement already has this information. [00:05:55] Speaker 06: It doesn't make any sense for the IRS to then not be able to provide it back simply because it came from taxpayer returns as opposed to some other source. [00:06:04] Speaker 06: And so we're going to have this technical fix. [00:06:06] Speaker 06: We're going to treat it as [00:06:08] Speaker 06: the type of information that can be disclosed without a court order in response to a valid request. [00:06:16] Speaker 04: What's the reason for the carve out in C for taxpayer identity? [00:06:23] Speaker 04: I mean, the way you just articulated it, it [00:06:27] Speaker 04: As I understood it was that look, if somebody is asking for the information, they have it anyway. [00:06:32] Speaker 04: So why not just let it be turned over? [00:06:35] Speaker 04: But why if they have the information anyway, then why turn it over? [00:06:39] Speaker 04: It doesn't tell me what's the affirmative interest in the carve out for a taxpayer identity. [00:06:45] Speaker 04: And what is it? [00:06:46] Speaker 06: I think from the 78 legislative history, it was at least ambiguous. [00:06:52] Speaker 06: What you said made a lot of sense. [00:06:53] Speaker 06: Perhaps if they didn't enact that exception, the law would have been allowed the IRS to turn that information back over to the [00:07:03] Speaker 06: to the law enforcement agency that requested it and what you know congress was concerned about taxpayer addresses just like any other piece of information that a taxpayer might file in their tax return and so they they just wanted to clarify that this is in this sort of situation it's not it doesn't raise the same privacy concerns and the same threats to what what why what i'm still not completely understanding [00:07:31] Speaker 04: Why have the carve out for taxpayer identity so that taxpayer identity not only can, but must be turned over? [00:07:41] Speaker 04: If I'm understanding this correctly, right? [00:07:43] Speaker 04: Because under ITC, when there's a request from an agency, the general bar against turning over, we get the term taxpayer return information, it doesn't apply to taxpayer identity. [00:07:59] Speaker 04: The current formulation does not apply to taxpayer identity. [00:08:02] Speaker 04: And why was it done that way? [00:08:06] Speaker 04: Why is there the carve out for taxpayer identity to allow taxpayer identity? [00:08:12] Speaker 06: I think Congress might have been, they wanted to clarify the law. [00:08:18] Speaker 06: They also might have been less concerned about the privacy implications of the IRS confirming that [00:08:24] Speaker 06: The name and address that the law enforcement agency provided was, in fact, the name and address that was reflected in the tax returns that identified the taxpayer for purposes of this other type of information that was a legitimate purpose under I-2, the third party information that law enforcement could see. [00:08:46] Speaker 06: So I would say it's just a technical fix to sort of streamline. [00:08:50] Speaker 04: But a fix to what? [00:08:53] Speaker 04: I think you're assuming that I know more than I do. [00:08:55] Speaker 04: I think I'm just not, I'm not understanding what's it fixing. [00:09:00] Speaker 04: Why the affirmative, there must have been an affirmative interest on the part of Congress in assuring that the taxpayer identity information can be transferred from the IRS to, taxpayer identity, if I said that right, can be transferred from the IRS to the requesting agency. [00:09:17] Speaker 06: Sure. [00:09:18] Speaker 06: Why? [00:09:18] Speaker 06: Well, in the 76th law, that wasn't clear. [00:09:21] Speaker 06: Taxpayer identity would have been taxpayer return information. [00:09:25] Speaker 06: It wasn't clear that the IRS could hand that back over. [00:09:28] Speaker 04: Exactly. [00:09:28] Speaker 04: So why did it need to be clear that it can be turned over? [00:09:30] Speaker 06: Well, I mean, when the IRS violates or an IRS employee violates a provision of these protections, they're subject to criminal liability. [00:09:39] Speaker 04: I get that. [00:09:40] Speaker 04: But why should they not be subject to criminal liability? [00:09:44] Speaker 04: I'm trying to understand, what's the policy interest [00:09:47] Speaker 04: in making sure that taxpayer identity information can be turned over. [00:09:52] Speaker 04: Somebody must have thought that there's a reason we need to make sure that taxpayer identity information can be turned over. [00:10:00] Speaker 04: What's the reason? [00:10:02] Speaker 06: Well, once again, I think it was simply to ensure the IRS, when they do send that back, that information back, that it is [00:10:12] Speaker 06: It's not going to lead to any concerns about liability on the individuals who are the employees who are doing that. [00:10:20] Speaker 04: Why wouldn't we want them to be liable? [00:10:25] Speaker 06: Because there was, well, once again, if the law enforcement agency already has that information, there's less of a privacy concern of turning that back over. [00:10:35] Speaker 04: But they might have wrong information. [00:10:37] Speaker 04: Well, they have. [00:10:38] Speaker 04: So suppose they have an old address. [00:10:42] Speaker 04: The law enforcement has an old address. [00:10:45] Speaker 04: And they say, this is the name of the person. [00:10:47] Speaker 04: Here's the best address I have. [00:10:50] Speaker 04: And then it could be that [00:10:53] Speaker 04: the response would be, okay, well, that's the address you have. [00:10:55] Speaker 04: The IRS isn't supposed to correct that. [00:10:58] Speaker 04: They're not supposed to turn over the correct address. [00:11:01] Speaker 04: And yeah, you requested it with the wrong address or an old address, but there's no reason for a carve out for taxpayer identity if the policy determination was made that look, that's okay. [00:11:11] Speaker 04: They've got the wrong address. [00:11:12] Speaker 04: Fine, they've got the wrong address. [00:11:13] Speaker 04: We're gonna turn over all the other information that they've asked for. [00:11:16] Speaker 04: But the one thing we're not gonna do is correct the address. [00:11:17] Speaker 06: No, well, they shouldn't turn over all the information. [00:11:20] Speaker 06: If they can't match up the name and address, [00:11:22] Speaker 04: Um, it's not a valid request. [00:11:24] Speaker 04: No, no, no. [00:11:25] Speaker 04: Suppose I disagree with you on that. [00:11:26] Speaker 04: I mean, I just assume for present purposes that I don't think there's a burden on the IRS to make sure that the address that's in the request is actually the current correct address. [00:11:37] Speaker 04: That may be an argument that's out there. [00:11:39] Speaker 04: It's unclear to me how forcefully that argument is being presented. [00:11:42] Speaker 04: Let's just suppose, and you might resist the assumption, but let's just suppose that I don't agree with you on that, that I think just for purposes of this question, let's suppose that there's a name and an address. [00:11:55] Speaker 04: It turns out to be an older address, but that's not enough to turn off the entire spigot. [00:12:00] Speaker 04: That you still have to turn over and I'm not talking about a case in which only address information is being requested. [00:12:05] Speaker 04: I'm talking about a case in which the other things that everybody agree can be requested is being requested. [00:12:11] Speaker 04: That just because the address is an old one in the request, it doesn't mean that the IRS doesn't have to turn over everything. [00:12:16] Speaker 04: They turn over the other information that's being requested that you agree can be requested and needs to be turned over. [00:12:23] Speaker 04: Why was it the decision made that in the course of turning over that other information, the IRS also turns over the address? [00:12:33] Speaker 06: So I don't know that a deliberate decision was made in that context. [00:12:38] Speaker 04: But it definitely was, because that's the whole point of I2C, is that to make sure the tax, as you rightly say, there was a question about whether taxpayer identity information could be turned over, and there was an affirmative decision made to make sure that it can be. [00:12:54] Speaker 06: Right. [00:12:55] Speaker 06: And once again, I think the concern that was before Congress's mind was that under the original 76 law, nothing could be turned back over that was taxpayer identity related. [00:13:07] Speaker 06: And it was a technical fix to the law. [00:13:11] Speaker 06: It wasn't intended to create this loophole where law enforcement agency could submit it. [00:13:17] Speaker 02: What was the problem that it was technically fixing? [00:13:22] Speaker 06: You know, all we have is the legislative history of the 78 report. [00:13:25] Speaker 06: And it mentions this problem that they were concerned that the IRS could not identify the material it was turning over with respect to the taxpayer's name in the drugs. [00:13:43] Speaker 02: So that the act of turning over things it can turn over would necessarily confirm [00:13:52] Speaker 02: the accuracy of the address. [00:13:55] Speaker 02: That makes sense, I guess. [00:13:58] Speaker 02: Because as we respond, then we're going, OK, yeah, we do have somebody on this address. [00:14:03] Speaker 06: I mean, I think the whole point is that this was a technical fix to sort of clean up the operation of the statute. [00:14:09] Speaker 06: It wasn't to create this loophole that allows law enforcement to, yeah. [00:14:13] Speaker 06: send over a spreadsheet of 1.3 million addresses and ask for updated addresses for all these taxpayers without any request to go after the types of information, third party information that I too is designed to facilitate without having to go to court and get a court order. [00:14:34] Speaker 06: And so I take your point, Your Honor, is that [00:14:39] Speaker 06: you know, it doesn't seem like much. [00:14:41] Speaker 06: That's the whole point. [00:14:42] Speaker 06: It was a technical fix to the statute in eighty-two. [00:14:45] Speaker 06: I mean, I'm sorry, seventy-eight. [00:14:47] Speaker 06: And, you know, they went in eighty-two when Congress wanted to allow prosecutors to look for the location of a fugitive. [00:14:56] Speaker 06: It enacted I-five. [00:14:57] Speaker 06: It didn't it didn't try to shoehorn that into I-two and say you can do that. [00:15:04] Speaker 06: You get that information without going to [00:15:07] Speaker 06: without going to a court and meeting with strict standards. [00:15:11] Speaker 00: Let me see if I can. [00:15:12] Speaker 00: I have to ask in my way. [00:15:14] Speaker 00: The statute literally does not support your position. [00:15:20] Speaker 00: I, too, says it can get disclosure of return information for use in criminal investigations. [00:15:28] Speaker 00: And we know from C that mailing address [00:15:32] Speaker 00: is part of the information that would be included in that term. [00:15:35] Speaker 00: That's just clear. [00:15:37] Speaker 00: There's nothing you can say to refute. [00:15:39] Speaker 00: If that's all we're looking at, that is absolutely clear. [00:15:42] Speaker 06: That's exactly our point. [00:15:46] Speaker 06: That's what the district court held and what the district court. [00:15:51] Speaker 06: Wait, wait. [00:15:52] Speaker 00: So that's straightforward. [00:15:54] Speaker 00: Now, I'm trying to understand one argument you're making is, well, it's kind of as best I can understand, it's a little strange that [00:16:02] Speaker 00: in order to get that information, which the statute says they can, they have to give an address. [00:16:11] Speaker 00: You think that's really despondent? [00:16:12] Speaker 00: Because as my colleague has said, it doesn't say what address they have to give. [00:16:17] Speaker 00: The government simply has to present whatever they... Wait, let me finish, okay? [00:16:22] Speaker 00: So we're back down to the statute says because of C, the mailing address is clearly return information and I too clearly says [00:16:34] Speaker 00: The government can get return information for use in criminal investigations. [00:16:39] Speaker 00: What else is there apart from what you think is strange that you have to give an address to get an address? [00:16:46] Speaker 00: I hear your argument, and maybe it is strange. [00:16:48] Speaker 00: Is there anything else? [00:16:50] Speaker 00: The legislative history, I must say, I waded through it. [00:16:55] Speaker 00: First of all, we're skeptical of that kind of evidence, and I don't think it's powerful here. [00:17:01] Speaker 00: What else is it [00:17:03] Speaker 00: that gives your argument real weight other than this strange address in B and address in C, and that seems strange to you that you would require someone to give an address when they're seeking an address? [00:17:19] Speaker 00: Anything else? [00:17:21] Speaker 06: Well, a few points, Your Honor. [00:17:22] Speaker 06: First of all, I don't want, in B, when it talks about the name and address, [00:17:28] Speaker 06: If you ask me what my name and address is, and I gave you my name, and I gave you my childhood address, you would not think I was very honest. [00:17:35] Speaker 06: So it's not just any address. [00:17:37] Speaker 06: It has to be something that is the address of the taxpayer. [00:17:41] Speaker 06: So I think it's a little bit more in this race. [00:17:43] Speaker 06: It's in Congress. [00:17:45] Speaker 00: I agree that if you just look... You got to have more of an argument than that. [00:17:48] Speaker 00: Okay, I hear you. [00:17:50] Speaker 00: Go ahead. [00:17:50] Speaker 00: I understand. [00:17:51] Speaker 00: I understand. [00:17:52] Speaker 00: They shouldn't overtly lie. [00:17:54] Speaker 00: You're saying, OK, let's accept that. [00:17:56] Speaker 00: But still, they can come in with the wrong address and be mistaken. [00:18:01] Speaker 00: And the statute doesn't appear to prohibit that. [00:18:04] Speaker 00: They could have a 2015 address. [00:18:06] Speaker 00: That's the best we have. [00:18:08] Speaker 00: And we have to give you an address. [00:18:10] Speaker 00: Here it is. [00:18:11] Speaker 00: It turns out it's 2015. [00:18:13] Speaker 00: It turns out IRS has the current information, and that's what they want. [00:18:17] Speaker 00: Now, how is that forbidden? [00:18:18] Speaker 00: Why? [00:18:18] Speaker 00: I'm not getting it. [00:18:20] Speaker 06: Well, we talked about B. There are a few other structural issues with... No, they've got to follow the rest of the requirements under B. OK. [00:18:31] Speaker 00: But go ahead. [00:18:31] Speaker 00: What else? [00:18:32] Speaker 06: So we have I-4, which talks about [00:18:37] Speaker 06: uh, submitting taxpayer return information in court proceedings. [00:18:41] Speaker 06: It does not carve out the taxpayers address. [00:18:44] Speaker 06: I think I think for the reason is that Congress anticipated the law enforcement agency would already have the tax. [00:18:51] Speaker 00: Do you think there is a positive requirement of court support for this request? [00:18:59] Speaker 00: Is that one of your arguments that you have to have a court order [00:19:03] Speaker 00: getting to be able to get this under the statute? [00:19:05] Speaker 00: Because again, I don't see that. [00:19:07] Speaker 00: Where do you think you're getting that? [00:19:08] Speaker 00: There are other provisions that do say that with respect to other matters. [00:19:12] Speaker 00: I don't see it with respect to return information in this particular provision. [00:19:17] Speaker 00: Where do you see it? [00:19:18] Speaker 06: Well, definitely, certainly a one and a five talk about getting a court order to get taxpayer information if they are broader than I to write admittedly, but that is the general premise of 66103 I that distinguishes between protections. [00:19:39] Speaker 00: It's surprising that wouldn't be in B if that was a requirement. [00:19:43] Speaker 00: Court order seems to me requirements. [00:19:47] Speaker 00: And then they list the things that the statute assumes you've got to come with. [00:19:51] Speaker 00: And if court order was one of the things, I would expect it would be there if that's what Congress meant to say. [00:19:57] Speaker 06: Right. [00:19:57] Speaker 06: And the reasons 6103 I-2 does not have the court order requirement is that the expectation is that the information being requested is this third party sourced information, not taxpayer addressed information [00:20:16] Speaker 06: The alternative would be every filing a taxpayer makes throughout their life to the IRS, every tax filing, all their addresses are free game for law enforcement. [00:20:30] Speaker 00: So if the law enforcement says- Use in a criminal investigation. [00:20:33] Speaker 00: We're only talking about- Yes. [00:20:35] Speaker 00: So it's not everything is open. [00:20:38] Speaker 00: In a situation where it's certifiably for use in a criminal investigation, that's the exception we're talking about. [00:20:46] Speaker 06: Right, all of 6103i is about, most of it is about criminal investigation. [00:20:50] Speaker 00: That's not everything. [00:20:51] Speaker 00: That doesn't mean in every situation when someone comes in. [00:20:55] Speaker 06: Yes, it means though every address the taxpayer has ever filed with the IRS becomes free game without a court order for criminal law enforcement to ask the IRS, give us this taxpayer's address history. [00:21:09] Speaker 04: If they have a criminal investigation purpose for seeking it. [00:21:11] Speaker 06: Yes, if they have a criminal investigation purpose for seeking it. [00:21:14] Speaker 06: All they have to do is [00:21:18] Speaker 06: you know, identify the statute and provide specific reasons for the information. [00:21:23] Speaker 06: If they're looking for current addresses, ICE is doing here, that's easier to meet. [00:21:26] Speaker 06: They just say, we want to find the, it's always relevant to try to find the individual. [00:21:30] Speaker 04: On that score, I understand that a lot of the underbrush here is about finding the individual. [00:21:36] Speaker 04: I actually didn't understand that that's the rationale that's being put forward in the MOU for getting the latest address, because I thought the rationale that's being put forward is not that we want to be able to find them so that we can do various things, including, you know, as you suppose, potentially have several middle disease, but it was that knowing the current address would let you know whether the [00:22:01] Speaker 04: And then comparing that to the date of the removal order would let you know whether it's beyond 90 days. [00:22:06] Speaker 04: So that's the element of the offense. [00:22:08] Speaker 04: It's not actually finding the person in order to be able to implement criminal process. [00:22:14] Speaker 04: It's to prove a violation of the statute. [00:22:16] Speaker 06: So a couple of points, Your Honor. [00:22:17] Speaker 06: First of all, the MOU, the very first paragraph talks about the desire to identify, exclude, and remove aliens. [00:22:24] Speaker 04: I understand that. [00:22:25] Speaker 04: I'm not going to suggest that that's completely out of the picture. [00:22:28] Speaker 04: It's sort of like saying that everything that's being done is informed by a priority of an administration, which I don't deny that point. [00:22:38] Speaker 04: But I'm just saying that as I understand it, and as the district court opinion says this, and I think some of the briefings say this, [00:22:45] Speaker 04: the primary reason, the primary stated reason. [00:22:49] Speaker 04: for seeking address information here, it relates to an element of the offense, which is to show that it's beyond 90 days past the removal order date. [00:22:56] Speaker 04: And one thing that's interesting about the MOU is that it requires, as I understand it, there has to be a removal order, and you have to disclose the particularities about that. [00:23:06] Speaker 06: This MOU is limited to removal orders in that sense. [00:23:10] Speaker 06: However, the MOU talks about other federal criminal laws, just like the statute does. [00:23:15] Speaker 06: And the IRS and the defendants here have taken the position [00:23:18] Speaker 06: that the MOU is sort of window addressing. [00:23:20] Speaker 06: If ICE came back tomorrow outside the MOU, they would still have to comply with the request for address information for other types of crimes. [00:23:30] Speaker 06: And I will say the statute, when it talks about the relevance of information, doesn't talk about element of the offense. [00:23:37] Speaker 06: So once again, it doesn't. [00:23:39] Speaker 04: I take that point. [00:23:40] Speaker 04: But as I understand the theory that's being put forward here, that's the theory is that [00:23:45] Speaker 04: The address information current address information bears on whether the person has overstayed 90 days beyond the date of the removal order. [00:23:55] Speaker 06: I mean, that is what they've put forward. [00:23:59] Speaker 06: I think it's a. [00:24:01] Speaker 06: It seems perplexing that they could do that on a bulk basis, say that it's relevant in each case, depending on the information they get back. [00:24:09] Speaker 06: We don't have information about how ICE is actually. [00:24:12] Speaker 04: It seems relevant. [00:24:14] Speaker 04: I mean, doesn't it? [00:24:15] Speaker 06: Well, they would only get back the address and potentially the tax year. [00:24:22] Speaker 06: But for a particular tax year, right. [00:24:24] Speaker 06: If the removal order was 10 years ago and it's the current tax year, [00:24:28] Speaker 06: They should not get back where that information comes from. [00:24:32] Speaker 06: So it doesn't necessarily have to come from a 1040. [00:24:35] Speaker 04: I don't know if... Well, wherever the information comes from, if the idea is, suppose you have a situation in which the removal order was 10 years ago, and then the latest address, where it comes from a return or wherever it comes from, is FY 2025, or tax year, I'm just speaking to fiscal year, it's not tax year, so 2025. [00:24:55] Speaker 04: Then that would tell you something about whether the person's overstayed by beyond 90 days. [00:25:02] Speaker 06: it's it's possible we we you know, once again, they could say we want this to locate the individual and that would also be possible. [00:25:10] Speaker 06: Uh huh. [00:25:10] Speaker 06: So, I mean, that that's not really a limitation in this context. [00:25:14] Speaker 06: Um and you know, ICE wears two hats and um they have a criminal hat and a civil hat and it [00:25:21] Speaker 06: they can achieve civil purposes wearing their criminal hat, which I think even the district court recognized but thought it was legitimate. [00:25:29] Speaker 06: They are allowed to use this information to contact a target and essentially propose a plea bargain that says if you turn yourself to court or turn yourself over to civil authorities, we won't prosecute. [00:25:43] Speaker 04: That's wearing their criminal hat. [00:25:44] Speaker 04: Which is kind of a natural part of the criminal process that often [00:25:48] Speaker 06: Correct. [00:25:49] Speaker 06: Whether that, you know, is or independently is or is not a permissible use of this information, the whole scheme [00:25:57] Speaker 06: depends on ICE being able to make a bulk request for updated taxpayer addresses. [00:26:08] Speaker 06: Instead of the sort of one-off request that IT was historically used for by prosecutors to get this sort of third-party source information, it would go to... Just so I understand your argument, so on the one-off, the standard one-off request, what you mean by standard request? [00:26:24] Speaker 04: I think it has been historically the standard request. [00:26:27] Speaker 04: You don't dispute that if there's a standard request that involves someone who would be within the compass of AUSC 1253A for overstaying beyond 90 days. [00:26:43] Speaker 04: You don't dispute that if there's a standard request that encompasses other return information, the kind of standard types of stuff that you see. [00:26:50] Speaker 04: And then the address, the current mailing address would have to be turned over. [00:26:55] Speaker 04: and the current mailing address could be used in exactly the same way that it's being sought and would be used in this situation, understanding that here that's the only thing that's being sought and it's being done in bulk. [00:27:07] Speaker 06: Well, I guess I will go back to your earlier premise. [00:27:12] Speaker 06: I would read the address that has to be turned back over to be the same that was applied. [00:27:17] Speaker 06: I know your honor said that that was the same that was used to apply. [00:27:21] Speaker 04: OK, go ahead and finish that because I have a question about that premise and then we'll move on. [00:27:24] Speaker 06: Yes, but otherwise, I would agree with your honor that the answer to the question is yes. [00:27:30] Speaker 04: OK, then on the premise, so if I'm understanding right, if your argument is right, [00:27:36] Speaker 04: The address has to actually be the current mailing address. [00:27:39] Speaker 04: The address put forward in the request has to be the current mailing address. [00:27:43] Speaker 04: That's your position, right? [00:27:45] Speaker 04: Yes. [00:27:46] Speaker 04: If that's true, then if you have a situation in which it's a standard one-off request and it's for other return information that's directly relevant to a criminal prosecution and the requester happens to not have the current mailing address, [00:28:01] Speaker 04: Is your view that what Congress intended was that because the requester, who has an even in your view, an entirely legitimate law enforcement interest in seeking that information to prove, let's say, an element of the offense that's proven by not the return information, not the address information, but return information that they're seeking, that the IRS is duty bound to say, no, we can't give you that return information because you haven't given us the right mailing address? [00:28:27] Speaker 06: The IRS has to, one caveat to that position, the I-2 allows for information on prior tax years. [00:28:37] Speaker 06: So it could be a plausible reading of the statute that if they're providing the address for plausible tax year, a past tax year, they can provide a prior address. [00:28:51] Speaker 06: I think the better reading of the statute, though, is that not any old address would work. [00:28:58] Speaker 06: But even if the court rejects that and says an old address would work for a legitimate request for third party information, in which case the IRS has to then provide the new current mailing address, that still doesn't justify this situation where they're seeking [00:29:13] Speaker 06: Yeah, the address is only on a bulk basis without going through the core process that I1 and I5 would require for location information. [00:29:26] Speaker 02: If they set up a computer, it would send in a request every minute because they're just going to be changing the name and address so that, in fact, they were submitting 3,000 requests a day, but individually. [00:29:44] Speaker 02: Would that be OK? [00:29:47] Speaker 06: No. [00:29:47] Speaker 06: Once again, I don't think the proper- Individual requests? [00:29:52] Speaker 06: Well, I think they have set up a system. [00:29:54] Speaker 06: That's how they process the 1.3 million. [00:29:57] Speaker 06: I don't think that the issue turns on whether they do it in a single spreadsheet or a computerized, worn-off request for information. [00:30:09] Speaker 06: It doesn't matter. [00:30:11] Speaker 06: The value really doesn't matter. [00:30:17] Speaker 06: The volume doesn't, I mean, no, legally it doesn't matter if they did this for one or for several million. [00:30:25] Speaker 06: But if you allow them to simply seek addresses, then that makes them able to seek it on a bulk basis or on a seriatim basis. [00:30:38] Speaker 06: When you limit I2 to third party sources of information, it necessarily [00:30:45] Speaker 06: um requires them when they're filling out the request to um identify you know why that particular piece of information is relevant to a criminal investigation as a practical matter that I think that forecloses sort of bulk uh processing scheme that they have here. [00:31:03] Speaker 02: Okay, I understand your point. [00:31:05] Speaker 06: I'm I'm over my time. [00:31:06] Speaker 06: Thank you, Castle. [00:31:07] Speaker 06: Give me a little time for rebuttal. [00:31:15] Speaker 07: Mr. Henricks. [00:31:17] Speaker 07: Thank you, Your Honors. [00:31:18] Speaker 07: Aaron Henricks for the appellees and may please the court. [00:31:22] Speaker 07: Plaintiffs here seek relief that would prevent the IRS from sharing information with DHS despite a statute that mandates such disclosure and despite both agencies compliance with that statute. [00:31:35] Speaker 07: As a threshold matter, plaintiffs lack standing to maintain this suit [00:31:41] Speaker 07: And regardless, the district court acted well within its discretion in denying the preliminary motion, sorry, the motion for preliminary injunction. [00:31:51] Speaker 04: You started by saying the statute mandates it. [00:31:54] Speaker 04: Is it right that since the statute was enacted in 1978, this has never happened? [00:32:01] Speaker 07: I believe it's correct that this particular request from this agency. [00:32:05] Speaker 04: No, not from this agency, just a request for address alone has never been [00:32:11] Speaker 04: successful. [00:32:13] Speaker 07: I'm not sure if a request for addresses alone has ever been attempted. [00:32:17] Speaker 07: But they came up with the selective service. [00:32:21] Speaker 04: I thought that was a lot of the underbrush was it was about the selective service. [00:32:24] Speaker 04: Everybody knew that this was a possibility. [00:32:26] Speaker 07: Right. [00:32:27] Speaker 07: As to the selective service example, no request was actually made through 6103I2 to find information on people who had failed to register. [00:32:39] Speaker 04: Right. [00:32:39] Speaker 04: I mean, it could be the request was made because nobody thought it was possible. [00:32:41] Speaker 04: I guess all I'm trying to nail down is that whether you're right or wrong about what you see to be a statutory mandate, [00:32:50] Speaker 04: This dynamic has never played out before in how many ever decades has passed from the time that this IPC was enacted. [00:33:00] Speaker 07: Yeah, the IRS has never been forced to wrestle with whether this is mandated or not. [00:33:05] Speaker 07: The statute seems to imply that it's mandatory. [00:33:10] Speaker 07: And as to the selective service example, [00:33:13] Speaker 07: It wasn't that they didn't go forward because they thought it wasn't mandatory. [00:33:17] Speaker 07: And in fact, the memoranda on the selective service issue never made a clear conclusion. [00:33:24] Speaker 07: It said it's a difficult question, but never made a clear conclusion. [00:33:28] Speaker 07: And probably due to policy reasons, never actually sent over an official request to the IRS. [00:33:38] Speaker 07: So I'll begin with standing if there aren't other questions in the immediate. [00:33:42] Speaker 02: I have some questions about how this works. [00:33:47] Speaker 02: So the argument here is that the MOU is just a reduplicating the statute statutory requirements. [00:33:57] Speaker 02: One of the things the MOU says in both section five and six is that ICE will make these requests for information. [00:34:10] Speaker 02: Is ICE one of the statutorily authorized entities to make a request for information? [00:34:15] Speaker 02: I don't see them on the list in 2A. [00:34:18] Speaker 07: It's a head of an agency, and as to these examples, the head of ICE, Todd Lyons, signed... Is ICE an agency? [00:34:27] Speaker 02: I thought DHS was the agency. [00:34:29] Speaker 02: ICE is a component of an agency. [00:34:32] Speaker 07: I believe pursuant to 6103, the head of an agency that ICE qualifies. [00:34:40] Speaker 07: Excuse me? [00:34:40] Speaker 02: Is that NIST somewhere? [00:34:41] Speaker 02: Is there a definition somewhere? [00:34:43] Speaker 02: I would have thought the head of the agency would be the agency or DHS. [00:34:48] Speaker 07: Correct. [00:34:50] Speaker 07: My understanding is that the head of ICE. [00:34:53] Speaker 02: It's a pretty carefully enumerated list. [00:34:58] Speaker 02: and doesn't include anybody involved in immigration enforcement other than if it was the criminal immigration enforcement, the deputy attorney general, or the FBI. [00:35:10] Speaker 02: And if the requests were coming from the Department of Homeland Security, or the head of the department, the secretary, that would make sense. [00:35:22] Speaker 02: But you defining ICE as its own independent agency? [00:35:29] Speaker 02: for purposes of getting information that's not the list i mean i don't know i don't i don't know how you can i don't understand your definition how you're reading the statute um i mean there's a reason here it's here to make sure that this is done at a very high level correct you know that's one of the protections of very highest levels of an agency and i thought ice was part of the department of homeland security agency [00:35:59] Speaker 02: Is that right? [00:36:00] Speaker 02: Do I have the flowchart right? [00:36:02] Speaker 07: That's right, Your Honor. [00:36:03] Speaker 02: Okay. [00:36:04] Speaker 02: They're not their own independent agency. [00:36:06] Speaker 02: Nor is Customs and Border Enforcement. [00:36:09] Speaker 02: Their components is what they are. [00:36:12] Speaker 02: If I go to Department of Homeland Security, am I going to see ICE under the lots of boxes and ICE will be under there somewhere? [00:36:19] Speaker 07: Yes. [00:36:20] Speaker 02: As part of the agency known as the Department of Homeland Security? [00:36:23] Speaker 07: Yes. [00:36:26] Speaker 02: So it doesn't qualify under the statute. [00:36:29] Speaker 02: Unless you've got a definition of agency, and I could have missed something, these tax laws. [00:36:34] Speaker 02: There's a lot going on here. [00:36:36] Speaker 02: Is there a definition or a case that says for purposes of this statute ICE or one of its predecessors qualifies as an agency? [00:36:46] Speaker 07: Candidly, Your Honor, I do not know the answer to that question. [00:36:49] Speaker 02: But it seems like there's a potential serious gap there, because I think for obvious, when statutes say who may ask, there's usually a reason for that. [00:36:58] Speaker 07: My understanding is that the government has or the IRS has gone through a comprehensive [00:37:08] Speaker 07: review of the legality of these requests and in fact rejected a previous request from IRS, sorry, from ICE when the signing head of the, you know, whoever signed the original request for data was not a high enough official. [00:37:28] Speaker 07: So the government's position is that hot lions as head of ICE satisfies the requirement to receive that. [00:37:34] Speaker 02: I understand that you all are doing it. [00:37:35] Speaker 07: Right. [00:37:36] Speaker 02: I mean, you all briefed the thing that this is the same as the statute. [00:37:39] Speaker 02: I'm just asking for what that legal argument was when I see Congress being very careful about who can make. [00:37:46] Speaker 02: These are serious requests for obvious reasons. [00:37:49] Speaker 02: I mean, not just for privacy interests, but this is the blood of the federal government is revenue. [00:37:58] Speaker 02: And you don't want to do things that are going to impinge on revenue collection for obvious reasons. [00:38:07] Speaker 02: It's strange to me that there is no argument in the brief, no analysis as to how ICE qualifies. [00:38:16] Speaker 02: They have subunits, like the administrator of the Drug Enforcement Administration, but they don't have any subunits within DHS or one of its predecessors. [00:38:35] Speaker 07: Your honor, the government on this point unfortunately does not have a particular response to that, but I would maintain that. [00:38:45] Speaker 02: And this could just be. [00:38:52] Speaker 02: Let me ask and start a question, might make this easy. [00:38:54] Speaker 02: Is this MOU modeled on, put aside the opening stuff about executive order, but all the operative firms, are they modeled on an IRS form that, you know, when people want things, they fill out this form and they make all these promises about, because there's things here about procedures and things like that that [00:39:16] Speaker 02: Is that unique or is there some form that this was modeled on? [00:39:19] Speaker 02: Because that might solve some of my questions about how this works. [00:39:22] Speaker 07: I believe that the MOU tracks the terms of 6103i2 and also in terms of the protection of the data once it's sent over is modeled after publication 1075 that describes the various procedures and policies in place to make sure that any disclosed information remains confidential. [00:39:43] Speaker 04: The MOU is not with ICE, right? [00:39:44] Speaker 04: The MOU is DHS? [00:39:48] Speaker 02: Correct. [00:39:51] Speaker 02: Yes. [00:39:51] Speaker 04: But then... And it's the secretary of DHS that executed the MOU? [00:39:56] Speaker 03: Correct. [00:39:57] Speaker 02: But then said, here's how this is going to work. [00:40:01] Speaker 02: ICE will make the request. [00:40:03] Speaker 02: That's 2A. [00:40:07] Speaker 02: ICE will make the request. [00:40:10] Speaker 02: IRS will respond to requests from ICE. [00:40:14] Speaker 02: But the statute says the secretary will respond to requests from and then lists the entities. [00:40:20] Speaker 02: So I don't think it matters who executed the MOU. [00:40:23] Speaker 02: The MOU said DHS isn't going to send in these requests. [00:40:29] Speaker 02: ICE is going to. [00:40:30] Speaker 04: What's happening with the requests? [00:40:32] Speaker 04: Currently? [00:40:33] Speaker 04: Well, how are the requests articulated? [00:40:36] Speaker 04: I'm not sure I understand what you mean by articulated. [00:40:40] Speaker 04: Is ICE sending a request as a component in their capacity as part of DHS because the Secretary of DHS has given ICE the authority to ask for a particular item? [00:40:54] Speaker 04: Or how is a request under this MAU actually happening? [00:40:59] Speaker 07: The request is authorized pursuant to the MOU between DHS and IRS, and following ICE, assuming appropriate official signs over the request, ICE sends the request to the IRS. [00:41:16] Speaker 07: And then IRS sends, if it complies with the requirements, sends the information back to ICE. [00:41:22] Speaker 02: OK, but is there any ambiguity in 2A? [00:41:27] Speaker 02: that upon receipt by the secretary, this is treasury for behalf of the IRS, which meets the requirements, a request from the head of any federal agency or inspector general, [00:41:46] Speaker 02: or in the case of the Department of Justice, let's say the Department of Justice entities, Director of FBI, Administrator of DEA, any US attorney, any special prosecutor appointed under, and there's a particular provision there, heads of criminal strike task force. [00:42:02] Speaker 02: So Congress has said where the request has to come from. [00:42:05] Speaker 02: This MOU says the request is not coming [00:42:09] Speaker 02: from the secretary of DHS or anyone else on this list, the request is coming from ICE and the IRS will respond to request from ICE full stop. [00:42:20] Speaker 07: The request is coming from ICE pursuant to authority granted by DHS. [00:42:25] Speaker 02: Is there anything that's mentioned as sub-delegations like that? [00:42:28] Speaker 07: I'm not sure you're on it. [00:42:29] Speaker 02: There is not. [00:42:30] Speaker 02: I mean, Congress knows how to say that. [00:42:32] Speaker 02: It'll say that all the time when it wants to allow a delegation of authority further down the chain. [00:42:37] Speaker 02: And it seems like Congress right here was very careful not to do that. [00:42:42] Speaker 02: Then the release is to officers and employees of such agency who are personally and directly engaged in [00:42:57] Speaker 02: preparation for a judicial proceeding, an investigation that could result in such a proceeding for grand jury. [00:43:04] Speaker 02: How is this personally and directly engaged in showing being made when you're getting requests for 1.28 million addresses? [00:43:16] Speaker 07: The request was made for 1.28 million. [00:43:21] Speaker 07: As of now, only 40, 47,000. [00:43:23] Speaker 07: That's not my question. [00:43:25] Speaker 02: Even if. [00:43:26] Speaker 02: How is that being? [00:43:27] Speaker 02: I'm just curious. [00:43:28] Speaker 02: I mean, I don't know. [00:43:29] Speaker 02: I mean, the individual. [00:43:30] Speaker 02: Sorry. [00:43:30] Speaker 02: There's a form request that I can look at. [00:43:31] Speaker 07: The individual who is investigating the $1.28 million is a high level assistant director. [00:43:38] Speaker 07: And it's at the earliest stages of the criminal. [00:43:40] Speaker 02: That person is personally and directly engaged in the investigation. [00:43:44] Speaker 02: Yes. [00:43:45] Speaker 02: What does personally and directly mean here? [00:43:47] Speaker 07: I mean, at this stage of the very beginning of an aggressive criminal investigation, [00:43:55] Speaker 07: for a crime like the willful overstaying of a final removal order, the beginning of that investigation may look like a large spreadsheet. [00:44:03] Speaker 02: But I'm sorry. [00:44:04] Speaker 02: I'm sorry. [00:44:04] Speaker 02: I'm confusing things here. [00:44:05] Speaker 02: It's my fault. [00:44:06] Speaker 02: I'm talking about to whom the information is released. [00:44:12] Speaker 02: Right. [00:44:12] Speaker 02: That's where they're personally and directly engaged in. [00:44:14] Speaker 02: Right. [00:44:17] Speaker 02: So there has to be a showing [00:44:22] Speaker 02: that the information will be released only to officers and employees who are personally and directly engaged. [00:44:29] Speaker 02: Is there something in the MOU that does that? [00:44:32] Speaker 02: That ensures that when the information comes back, it only gets channeled to those involved in that individual's criminal investigation? [00:44:43] Speaker 07: Yes. [00:44:47] Speaker 02: Sorry, there's a lot in here. [00:44:48] Speaker 02: No worries. [00:45:00] Speaker 07: In section six of the MOU, it describes the duties and responsibilities of ICE, which include keeping that information exclusive to people who are involved in that criminal investigation. [00:45:12] Speaker 02: But then E says, ICE will use and re-disclose the address information. [00:45:17] Speaker 02: And I'm just wondering how is... Take it out of this case. [00:45:26] Speaker 02: I just don't quite know how this is normally done and then how it's done here. [00:45:32] Speaker 02: When, before all of this, when a request comes in, do those requests usually identify the individuals to whom the information will be released? [00:45:47] Speaker 07: And here, I believe the information is being released. [00:45:50] Speaker 02: I'm just asking a question about is that normally do they list like names of the agents? [00:45:56] Speaker 02: I'm not even talking about this case. [00:45:58] Speaker 02: A year ago. [00:45:59] Speaker 02: Right. [00:45:59] Speaker 02: Let's say, I don't know what they look like. [00:46:02] Speaker 02: That's why it's hard to know. [00:46:03] Speaker 07: If a single US attorney's office were making this request for a bank robbery, I imagine that it would be sent to the individuals investigating that particular bank robbery. [00:46:13] Speaker 02: The US attorney would send it to, would the request identify to whom it's going to? [00:46:18] Speaker 02: I'm not sure, Your Honor. [00:46:20] Speaker 07: Are there other MOUs with folks that are... I just don't... No, the MOU I think is a... [00:46:32] Speaker 07: a solution to a problem that may have occurred if you tried to do large-scale criminal investigations with individual agents all requesting from individual IRS agents and the information being spread. [00:46:47] Speaker 07: Individual agents can't request. [00:46:49] Speaker 07: Well, then sending up individual requests to the appropriate agency head to send over to IRS, which would [00:46:56] Speaker 07: involve perhaps a greater risk of diffusion of this confidential information? [00:47:01] Speaker 07: The MOU streamlines that approach. [00:47:03] Speaker 02: No, I think the whole point is that that's why I'm asking, I guess my assumption reading the statute, if you say we're complying with every provision of the statute, would be the right person would send in the request and a listed authorized person would send in the request. [00:47:19] Speaker 02: And then I would say what information they want and its connection to proceedings, investigations, grand juries, and to whom the information should be disclosed. [00:47:38] Speaker 02: The secretary shall disclose return information to [00:47:43] Speaker 02: And so the request has to say to whom this information is going. [00:47:47] Speaker 02: And the only people it can go to are people who are personally and directly engaged in that. [00:47:52] Speaker 02: I assume in this case is investigation, investigations, or maybe it's proceedings too. [00:48:00] Speaker 02: I was assuming not grand juries, but you can tell me if I'm wrong. [00:48:05] Speaker 02: So that's what the statute says. [00:48:09] Speaker 02: So the only way [00:48:10] Speaker 02: the Secretary of Treasury would note to whom to release this information is the identification of individuals, the individuals. [00:48:18] Speaker 02: So a U.S. [00:48:19] Speaker 02: attorney situation would say, please release this information to AUSAX, AUSAY, maybe FBI Agent Z, because they are personally and directly engaged in this investigation proceeding in Treasury. [00:48:34] Speaker 02: How does that happen here when they, [00:48:37] Speaker 02: And someone sends in a 1.28 million. [00:48:40] Speaker 07: My understanding is that the individual who sent out that request is personally and directly engaged in that investigation. [00:48:46] Speaker 02: So the person who makes the request doesn't have to be personally and directly engaged. [00:48:49] Speaker 02: I think it would be a lot to imagine. [00:48:50] Speaker 02: I think personally and directly means something more than I'm the head of the agency. [00:48:54] Speaker 02: I don't think Congress was assuming here that... No, I'm sorry. [00:48:58] Speaker 02: The attorney general was personally and directly engaged. [00:49:03] Speaker 02: I'm assuming the head has to approve the request. [00:49:06] Speaker 02: That's why the list is here. [00:49:07] Speaker 02: And then they say, don't bother sending it to me. [00:49:10] Speaker 02: I guess so much about paperwork. [00:49:11] Speaker 02: Send it directly to ABC. [00:49:13] Speaker 07: I'm sorry. [00:49:14] Speaker 07: I think I think I think we're confused. [00:49:17] Speaker 07: I mean, the individual who they're sending them, I'm not talking about the head of the agency request. [00:49:21] Speaker 07: I'm talking about the assistant director who is listed as the person who's personally involved. [00:49:25] Speaker 07: I believe his name is Jeffrey Williams in the reporting, but he is the individual that the information sent to his name. [00:49:32] Speaker 02: So his name is on every single one. [00:49:35] Speaker 02: So when there was a request for 1.28 million, his name was the person listed as a person, the information should go. [00:49:41] Speaker 02: And he was personally and directly engaged in investigating 1.28 million people at that moment. [00:49:47] Speaker 04: Yes. [00:49:48] Speaker 02: Okay. [00:49:50] Speaker 04: Can I ask, I think it's related to this. [00:49:54] Speaker 04: There's this implementation agreement that's referred to in the materials that's in the record but not in the appendix. [00:50:00] Speaker 04: Is some of this spelled out in the implementation agreement, how the mechanics of this work? [00:50:07] Speaker 07: The implementation agreement is the kind of highly technical modes of data transfers [00:50:15] Speaker 07: So yes, I think that the implementation agreement outlines some of the finer details about how this works in practice. [00:50:22] Speaker 07: And I would just say, and I apologize for not having the exact details on this, the conversation reflects kind of a larger difficulty with this case in that it's a pre-enforcement preliminary injunction. [00:50:34] Speaker 07: So the record before the court is really the MOU, the statute, and what was before the district court. [00:50:42] Speaker 07: So it's difficult for the government at this stage [00:50:45] Speaker 07: explain exactly how this is being enforced when the lawsuit is challenging pre-enforcement? [00:50:52] Speaker 04: Well, yeah. [00:50:52] Speaker 04: I mean, these arguments weren't being made, but they're still four-square in the statute. [00:50:59] Speaker 02: To the extent your argument in the MOU is consistent with the statute, that's why I'm asking, that's the argument you've made. [00:51:05] Speaker 02: You all are processing these things already. [00:51:08] Speaker 02: You told me about 4,000 you'd already turned over. [00:51:10] Speaker 02: So that's why the questions about what this looks like and how they're showing it doesn't seem like something the government can't know at this stage. [00:51:20] Speaker 04: Do we have an example in the record of an actual request and response under the MOU? [00:51:26] Speaker 00: No. [00:51:28] Speaker 00: Can you tell me again, just so I make sure I'm clear on it, what's your [00:51:33] Speaker 00: response to the appellant's claim, excuse me, that a court order is not necessary to get a mailing address. [00:51:46] Speaker 00: Well, one of their claims is this can't be done without a court order. [00:51:51] Speaker 07: I think that that claim contradicts the plain text of 6103I2, 6103I2 mandates that pursuant to a non-tax criminal investigation, if a requesting agency sends over a valid request, that return information [00:52:12] Speaker 07: and a taxpayer's identity is sent over, there's no mention of a court order in that provision. [00:52:18] Speaker 00: Are you saying the statutory references to which they are pointing are irrelevant? [00:52:24] Speaker 00: I think they're citing some other provisions. [00:52:25] Speaker 07: Right, other provisions. [00:52:26] Speaker 07: So, for example, I believe 6103 I-5 refers to locating a fugitive. [00:52:34] Speaker 07: One, that [00:52:36] Speaker 07: that occurs only when there's an outstanding arrest warrant for an individual, and 6103 I-5 allows a requesting agency to obtain far more information than 6103 I-2. [00:52:51] Speaker 07: So each of these provisions represents kind of the balance that Congress is putting out between law enforcement efficiency [00:52:58] Speaker 07: and the confidentiality of a taxpayer's information. [00:53:02] Speaker 07: There were different balances struck in I-2 than there were in I-5. [00:53:07] Speaker 07: I-5 they deemed a court order necessary and I-2 they did not. [00:53:13] Speaker 04: What do you think under I-5 is the most useful information? [00:53:19] Speaker 04: It's hard to say. [00:53:21] Speaker 04: You can get the... Is it that hard? [00:53:24] Speaker 04: I mean, it does seem to me that under I-5, the most useful information to locate a fugitive would be where they're located. [00:53:31] Speaker 07: If they're being truthful with their returns in terms of their address, then maybe, but if not, then the employer's address might be more useful or information about their bank may be more useful. [00:53:42] Speaker 07: I mean, it's hard to say exactly without knowing the specifics of that particular investigation. [00:53:49] Speaker 04: And I also wonder with respect to I-5, is the theory about how the information is going to be used by ICE slash DHS slash ICE, is it that the location is to find the person or is it that the location is relevant to establish the 90 days or both? [00:54:08] Speaker 04: I think it could be both. [00:54:10] Speaker 04: It may be. [00:54:12] Speaker 04: Because one of them would apply in the general fugitive context, the other one would not. [00:54:17] Speaker 07: Correct, but under at least investigation into the willful overstaying of removal order, the location is useful outside of its locating properties because of the elements of the crime being investigated. [00:54:37] Speaker 02: Can I ask another question? [00:54:38] Speaker 02: My name is not particularly common, but there's a lot of people that have. [00:54:46] Speaker 02: pretty common names. [00:54:48] Speaker 02: So if John Smith, so if you've got a request from, assume it comes from someone authorized to send it, for John Smith at 333 Constitution Avenue. [00:55:04] Speaker 02: And that's the latest address the requester had, but it's been a while. [00:55:14] Speaker 02: And do you run the search and there has to be an awful lot of, and that's the only information they've given you, name and address. [00:55:22] Speaker 02: There has to be a lot of John Smiths with different addresses. [00:55:31] Speaker 02: How do you not mistakenly turn over to the law enforcement agency the wrong [00:55:43] Speaker 02: John Smith or when you if it comes in and you've got multiple responses, you just say we can't, we can't. [00:55:52] Speaker 02: Would that be a non-response then you can't respond? [00:55:53] Speaker 07: I believe that, or I don't believe it's true, that [00:56:00] Speaker 07: In order to get the information from the IRS, there has to be an exact match with a name, either a name and an address that they have on file. [00:56:11] Speaker 07: So for John Smith at 333, at some point, [00:56:16] Speaker 07: the IRS would have to see a John Smith who also put a 333 down as their address or an exact match between John Smith and the ITIN number that they were using to file taxes. [00:56:29] Speaker 02: But they're not providing an ITIN number, are they? [00:56:33] Speaker 02: When they request? [00:56:35] Speaker 02: I mean, that would definitely narrow things down. [00:56:37] Speaker 07: I believe that there are terms under the request that you can get an exact match, either for the name and address or the name and the ITIN number. [00:56:46] Speaker 02: I just wasn't under the understanding that maybe they have the ITIN number from something else. [00:56:50] Speaker 02: That makes sense if you have an ITIN number. [00:56:52] Speaker 02: But if you don't, and if it's not 33 Constitution Avenue, but it's a very large apartment building in New York City. [00:57:00] Speaker 02: So you end up with lots of John Smiths that either currently or previously [00:57:08] Speaker 02: name and address matches. [00:57:11] Speaker 02: That's one thing that seems a little worrisome when someone just says I've got a name and maybe outdated address and I'd like to get. [00:57:16] Speaker 07: So a couple things. [00:57:20] Speaker 07: First, I don't know how many real overlaps there's going to be between specific apartment numbers and someone's name and address and address that they had handed over to the IRS. [00:57:29] Speaker 07: For the purposes of this information sharing agreement, [00:57:32] Speaker 02: There's a lot of people filing a lot of tax returns over a lot of years. [00:57:38] Speaker 02: And you have common names. [00:57:40] Speaker 07: Well, Maria Flores, let's assume that there would be a ton of. [00:57:46] Speaker 07: Let's call it repeat names that are going to be overshared. [00:57:49] Speaker 07: The important part of the agreement is that they're being sent over for purposes of... I don't want my name sent over if I'm not the right person that they were asking for. [00:58:01] Speaker 02: That's why I'm trying to understand how you can very easily imagine more than one John Smith having lived [00:58:09] Speaker 02: at some point in the records of the IRS even in the same apartment in the same large apartment building but that's not the address you know they provide a stale address you've got a more recent you've got lots of more recent I mean you're just going to be well I don't know how you protect people whose information shouldn't be turned I think we've been operating under the name and address [00:58:32] Speaker 07: sharing information that we're talking about, but in the reality under the sharing that's going on now is that unless DHS sends over name, address, [00:58:45] Speaker 07: immigration court case number, date of final removal, they're not getting anything from IRS. [00:58:51] Speaker 02: And so I get the... I'm assuming you don't have records that are going to have those last two things. [00:58:58] Speaker 02: And so what you're going to be trying to match to is name and address. [00:59:05] Speaker 07: But IRS will not process the request for name and address unless they see name, address, immigration court case number, date of final removal order, statute that's being investigated, and specific reasons why the location is relevant. [00:59:20] Speaker 02: So when you pull up a tax return that says John Smith ex-address, I'm assuming [00:59:27] Speaker 02: nothing on that tax return or all the other files you have on that person are going to have anything about immigration proceeding. [00:59:35] Speaker 02: So I don't understand how that narrows down what your response is. [00:59:38] Speaker 02: So I understand what you're saying. [00:59:40] Speaker 02: I mean, you're complying with the other parts of the statute. [00:59:42] Speaker 02: They have to say what they're investigating inside the statute. [00:59:45] Speaker 02: I'm not disputing that. [00:59:46] Speaker 02: I'm just assuming they've done a proper request. [00:59:51] Speaker 02: And you get lots of responses with that common name. [00:59:58] Speaker 02: for that common address. [01:00:01] Speaker 02: Is that the end of it because you can't match it? [01:00:04] Speaker 07: Assuming that the request has already gotten through the door with the multiple other requirements to make sure that we're the person we're talking about. [01:00:12] Speaker 02: The person requesting has all that information, but all they've got is a name and an address. [01:00:16] Speaker 02: It's a super common name and a super common address. [01:00:20] Speaker 02: Because it sounds like you're searching all IRS files back for I don't know how many years. [01:00:28] Speaker 02: You're going to get three John Smiths at that address. [01:00:34] Speaker 02: What happens then? [01:00:34] Speaker 02: Or who at some point lived at that address is what I should say. [01:00:42] Speaker 02: I'm just wondering what protection is there for the taxpayer who is not the immigration enforcement, John Smith. [01:00:49] Speaker 07: The protection there is on, I guess, let's say that there are duplicates. [01:00:56] Speaker 07: I'm not sure if there's a specific protection against, oh, we got three hits on this, so we're going to run it down further. [01:01:02] Speaker 07: I'm not sure about that. [01:01:03] Speaker 07: But there is protection that the information remains confidential. [01:01:08] Speaker 07: the entire time that it's being used by ICE. [01:01:12] Speaker 07: And as soon as it's no longer being used for a criminal investigation, they have duties to destroy or return it. [01:01:18] Speaker 02: On the date that address now, I'm going to have law enforcement breaking down my door. [01:01:24] Speaker 07: I would assume not because ICE would have. [01:01:29] Speaker 02: But ICE will have. [01:01:32] Speaker 02: all this return information about me because the search doesn't do anything to differentiate. [01:01:38] Speaker 02: I had thought if you had multiple returns, it would be a, we can't tell, we don't know whose information to turn over, but it sounds like your answer is if we've got multiple people with that name and at that address at any point in their history, you get all their return information and you leave it to them to sort it out. [01:01:56] Speaker 07: I am not representing that there's not some procedure for dealing with duplicates. [01:02:02] Speaker 07: I just don't know one way or the other at this point, but I... I mean, that's the most inherent. [01:02:06] Speaker 02: If they're giving, assuming, and maybe they have the more recent address and you have an older one, I mean, it could be other way, but assuming they're giving you the last known address to them and assuming that you have the more recent one, that's gonna... I assume you're going back and all your... I don't know how back your files, how many years back your file goes for, your files go for. [01:02:25] Speaker 07: Your records go for I think if there's a if there's an address hit, there's an address hit and. [01:02:30] Speaker 07: I mean, that's what I just wanted. [01:02:34] Speaker 07: Wow, that the statue says that if you send over the address, IRS will send over the address that they have on file that matches that name and address. [01:02:46] Speaker 03: If I may just give a factual clarification here in terms of the way the IRS is processing these requests. [01:02:53] Speaker 03: The IRS is only responding and providing address information to ICE if there is either one of two things, either an exact hit on the item and the name or an exact match on the name and the address. [01:03:06] Speaker 03: And that's an exact match. [01:03:07] Speaker 03: That's not Brad for Bradley. [01:03:08] Speaker 03: That is an exact match on both [01:03:10] Speaker 03: because in many cases ICE actually does have the I-10 of these individuals. [01:03:15] Speaker 03: That's actually the majority of the addresses that have been provided is where there's an exact match on both the I-10 and the name. [01:03:21] Speaker 03: If there's not an I-10 provided, then the IRS would instead search by name and address. [01:03:28] Speaker 03: And it's only going to be if there's an exact match on both of those things that there would be information. [01:03:32] Speaker 02: But when you say exact match, sorry, I want to shuffle them up on the I-10, so that's a lot. [01:03:36] Speaker 02: I didn't know they would have those. [01:03:37] Speaker 02: And then two, [01:03:39] Speaker 02: that name has been associated with that address at some point in that taxpayer's history. [01:03:46] Speaker 02: Or only if it's the top address. [01:03:48] Speaker 03: That's correct. [01:03:48] Speaker 03: There'd be an exact match and it could be for a prior tax year. [01:03:51] Speaker 03: It wouldn't have to be the current year address. [01:03:53] Speaker 02: That's what I'm wondering about. [01:03:55] Speaker 04: Yes, your honor. [01:03:56] Speaker 04: Understood. [01:03:57] Speaker 04: Okay, thanks. [01:03:58] Speaker 04: I just, I mean, I appreciate that you're trying to help. [01:04:00] Speaker 04: Let's not have people just coming up to the podium and starting to speak without asking for the ability to do that because that's not normally what we do here. [01:04:08] Speaker 04: But I appreciate that you're trying to be of assistance. [01:04:12] Speaker 07: I see my time is up. [01:04:14] Speaker 07: If there are other questions, I'm happy to answer them. [01:04:19] Speaker 04: Do you know what the... Oh, I don't want to stop the line of questions. [01:04:24] Speaker 02: I'm just glad I have an uncommon name. [01:04:27] Speaker 04: I know the feeling. [01:04:27] Speaker 02: My husband does not, so I hope he puts that in his documents. [01:04:32] Speaker 04: Do you know the purpose of I2C? [01:04:37] Speaker 04: Why was there this determination made? [01:04:40] Speaker 04: that taxpayer identity is something that needs to be carved out and should be turned over when tax return information generally would not be. [01:04:53] Speaker 04: Why was that determination made in 1970? [01:04:54] Speaker 07: The purpose, not to get into the minds of legislators back then, but the purpose that is kind of obvious from the terms of the statute is [01:05:10] Speaker 07: there's a balance between confidentiality and law enforcement efficiency. [01:05:15] Speaker 07: And in weighing that balance, the taxpayer identity fell on the side of law enforcement efficiency. [01:05:23] Speaker 07: Unlike other types of tax pay return information. [01:05:25] Speaker 04: So your view is that ITC actually was affirmatively intended [01:05:29] Speaker 04: to make sure that the law enforcement agencies had, the requesting agency had a current address so that they could use the current address for criminal investigative purposes. [01:05:43] Speaker 07: I wouldn't necessarily say that it's the purpose to send over the current address, but to send over the address that the taxpayer had most recently sent to the IRS, the purpose of the carve-out for that information is obviously to aid in the investigation of non-tax federal criminal violations. [01:06:05] Speaker 04: Because that might be germane, because the address might be germane to the criminal investigation? [01:06:10] Speaker 04: Correct. [01:06:10] Speaker 04: You don't think it was because [01:06:13] Speaker 04: Okay, because there's some allusion to legislative history and it doesn't it doesn't look like a snippet of legislative history relates to actually making sure the law enforcement agencies have the address so they can use it for criminal investigative purposes. [01:06:27] Speaker 04: Now, it may be that the upshot is still that that can be done. [01:06:31] Speaker 04: I'm not saying that it can't be done. [01:06:33] Speaker 04: I'm just saying that I guess I wasn't aware. [01:06:36] Speaker 04: that the reason that I2C was enacted was specifically to make sure that the requesting agency has the address so they can use the address for criminal investigative firms. [01:06:45] Speaker 07: I mean, it's located in a section of the tax code that is for the purposes of aiding in non-tax federal criminal investigations or proceedings. [01:06:59] Speaker 04: You think it should be read that way because it's in this provision and that's the best inference from the text alone. [01:07:05] Speaker 04: wondering whether there's something we know about the way this text came about that would shed additional light on that, but maybe perhaps not. [01:07:12] Speaker 04: I don't believe so, Your Honor. [01:07:13] Speaker 04: OK. [01:07:14] Speaker 02: Can I ask one more question? [01:07:15] Speaker 02: Yeah, of course. [01:07:16] Speaker 02: Sorry. [01:07:17] Speaker 02: This phrase, personally and directly, do you know if there's anything in the statute, in a regulation, manual, something that define, because the statute's been around quite some time, or case law, a case law that defines what personally and directly means? [01:07:35] Speaker 07: I don't know of any further guidance on the meaning of that phrase. [01:07:40] Speaker 07: I think it's pretty plain that it's someone who is... I don't think it's all that plain. [01:07:43] Speaker 07: It's someone who is investigating criminal violations. [01:07:48] Speaker 04: Okay. [01:07:51] Speaker 04: That's all. [01:07:51] Speaker 04: There's no further questions. [01:07:53] Speaker 04: Thank you, Your Honor. [01:07:53] Speaker 04: Thank you, Your Counsel. [01:07:57] Speaker 04: Mr. Joshi will give you three minutes for rebuttal. [01:08:01] Speaker 06: Thank you. [01:08:01] Speaker 06: I'll just make a few brief points. [01:08:03] Speaker 06: First, I'd like to draw the court's attention to 6103M simply because there are various provisions in there which show Congress is very concerned about disclosure of taxpayer address information. [01:08:13] Speaker 02: So you said M is in? [01:08:17] Speaker 06: Mary. [01:08:19] Speaker 06: Especially subsections. [01:08:20] Speaker 02: That's the same elect to make me feel good. [01:08:24] Speaker 06: You asked about the implementation agreement at the time. [01:08:27] Speaker 06: This case was before the district court. [01:08:30] Speaker 06: Implementation agreement was not in the record. [01:08:33] Speaker 06: It was still under seal. [01:08:34] Speaker 06: It has since been disclosed. [01:08:36] Speaker 06: And it has been posted in the docket in the Center for Taxpayer Rights litigation before Judge Paolo Cattelli. [01:08:43] Speaker 06: So that is public now if you're interested in that. [01:08:48] Speaker 06: Council mentioned that the IRS requires an exact match of the address. [01:08:54] Speaker 06: That I don't think is either in the MOU or the implementation agreement and I'll point to page 54 of the government's brief where they say [01:09:04] Speaker 06: Even if the memorandum were rescinded tomorrow, the IRS will still be required by statute to provide address information to ICE upon receipt of a valid request. [01:09:12] Speaker 06: So the government's position is the MOU is sort of window dressing, but still the statute that's doing the work. [01:09:17] Speaker 06: And under their interpretation of the statute, they would disclose address information in bulk upon request. [01:09:25] Speaker 06: And so it's not just limited to orders of removal. [01:09:29] Speaker 06: statutes such as the failure to register, reentry after removal, other criminal statutes. [01:09:35] Speaker 06: A lot of these criminal statutes, the difference between innocent conduct and non-criminal conduct and criminal conduct is a woeful misrequirement. [01:09:46] Speaker 06: They, you know, DHS or ICE or whoever's responsible for, you know, asking for this information doesn't have to prove to the IRS there's evidence of wolf on us. [01:09:55] Speaker 06: They will say and the IRS won't question we're doing this investigation for these types of crimes and if that would be sufficient for them to get location information of taxpayers in bulk. [01:10:10] Speaker 06: So there's no real limiting principle if they're allowed to [01:10:14] Speaker 06: implement I-2 in the way that they have done, announced that they will do in the MOU. [01:10:20] Speaker 06: And I will say the other point about data errors, when there is the traditional situation where the prosecutor sends a one-off request to the IRS, there's communication back and forth. [01:10:34] Speaker 06: I'll point to our brief at page 40, which notes that [01:10:38] Speaker 06: Up till this year, all of these requests have involved prosecutors seeking information under I-2. [01:10:45] Speaker 06: And when you have these sort of mass process requests that are not looked over by an individual, you do run the risk of some data errors. [01:10:55] Speaker 06: I'm out of time. [01:10:56] Speaker 06: If there's any other question, I will have it answered. [01:11:03] Speaker 04: Yeah, we can. [01:11:04] Speaker 04: The implementation document, you said it's in the record in that other case? [01:11:08] Speaker 04: Yes. [01:11:08] Speaker 04: I mean, I think we can just, you can just introduce it into the appellate record in this one. [01:11:13] Speaker 04: I'm happy to follow that. [01:11:14] Speaker 04: Okay. [01:11:15] Speaker 04: Thank you, counsel. [01:11:17] Speaker 04: Thank you to both counsel. [01:11:18] Speaker 04: We'll take this case under submission.