Legal Case Summary

Good morning everyone. First case this morning is number 045155. Clint Whittell corn mining against the United States. Mr. Harwoods. May please the floor. The judgment of the United States Court of Federal Planes that denied interest on the award of damages for the government's unconstitutional taxation, the election balance exports of coal should be reversed. Because the damages awarded for the unconstitutional taxation of coal and therefore the damages for an overpayment of an internal revenue tax. Now are you talking only about the first three years? Is it conceded that you're entitled to interest for the most recent three years? Yes, the government agrees and indeed with the refunds for those three paid interest on those the administrative. At the provision in question, 20 of USC section 2411 authorizes interest in any judgment, any overpayment in respect of any internal revenue tax. And the damages awarded for for an overpayment of an internal revenue tax is no dispute that the coal ex-sized tax is an internal revenue tax. It's no dispute that the balance payment of those taxes is an overpayment. So we submit that under the plain language of section 2411, the requirements met and that the judgment issue will be at for damages as it is a judgment for an overpayment in respect of any internal revenue tax. The government is arguing that 2411 is part of the overall tax revenue scheme and that the New York claim under the constitution is a separate claim outside that provision relying on the economy case. What's your comment on that? Yes, the government maintains that and this is where we believe the Court of Federal claims error that 2411 is nothing more than just another part of what the government first does, the tax refund system

. 2411 in fact is broader than that. In this Court's decision in IBM, the Court recognized that 2411 is a provision of law relating to the administration and enforcement of taxes. But the Court did not equate administration enforcement solely with a tax refund. It recognized that administration and enforcement is a broad concept that includes a Court's issuance of judgments and a Court's Q to the issuance of interest on a judgment. And significantly, the judicial role in the IBM case was an issue into the judgment in a lawsuit very similar to the lawsuit issue in this case. It was a lawsuit for damages based on the export clause that was filed instead of in the Court of Federal claims in the Court of International Trade. But that was not a lawsuit that was filed within the confines of tax refund system. It was essentially a super damages under the export clause in the Court of International Trade. And in that case, the IBM Court looked to see it was a claim for interest on hard-to-maintain tax, the monetary judgment for hard-to-maintain tax. And the Court set out its analysis by saying, we've got to have a waiver of the government's sovereign immunity to a board of interests. And if such a statute exists, we then have to see whether the provisions of the H&T statute are the application of that waiver. In the Court examined the various possible sources of the waiver. And when the Court came upon 24-11, the Court found that, agreed with IBM's argument, that 24-11 has been broadly construed and in fact was broad enough to cover the case before the court. The only reason why 24-11, in the waiver of 24-11, he was not applied was because the hard-to-maintain tax statute contains some rather unique language, he said, do not treat the H&T as a tax for purposes of administration and enforcement provisions

. And the IBM Court therefore was called upon to determine what is meant by administration and enforcement. And it determined that it's a very broad concept that was broad enough to cover what the Court of International Trade had done in that case. And I got a good distinguishing economy plumbing as a case that was essentially a contract case. And that the recovery was indeed a recovery for contract damages and not at all a tax. It was entirely outside the tax system. That's correct. The counter-common is very distinguishable from this case and indeed from IBM as well. In that case, the recovery was a recovery in contract action and GAO basically diverted the funds and paid it over to the IRS to satisfy a tax in the end against the plaintiff's partner and the joint venture. And the plaintiff argued, well, that makes it a tax over payment. And the entire thrust of the common plumbing was that the plaintiff was not a tax payer, had not made a tax payment, and therefore did not satisfy the fundamental prerequisite of the interest of 24-11. Now, the government, like the Court of Federal Plains below, relies heavily on dictate an economy plumbing that refer to the administrative system. But we submit that that dictat is very unremarkable and totally applicable to this case. Because in a common plumbing, the only way that the plaintiff could have to see it, had it made a tax over payment. Was by filing a tax refund plan

. There was no money mandating constitutional provision akin to the export clause of the judicial compensation clause in that case. So that would have been the only route that the plaintiff could have gone. So in order to get interest, the plaintiff would have had to admit a tax payer, filed a maybe tax over payment, and proceeded within the administrative system. And that's exactly what the Court of Federal Plains, rather the Court of Plains, said in a common plumbing. But the Court did not report to examine a situation that was not presented with, as we have here, where there is a tax over payment. And the plaintiff can proceed with respect to that tax over payment outside the tax refund system. It's just not before the Court of Economy Plumbing and the Court did not report to address such a situation in that case. Mr. Horowitz, how are you defining over payment? Why is this an over payment? Overpayment has been very broadly defined by the United States Supreme Court. Essentially, is any payment in excess of that, which is lawfully or properly for whatever reason? And certainly, a payment of an unconstitutional tax clause, well within the definition of overpayment. There is really no dispute in terms of what the meaning of overpayment is in this case. The government seeks to really engrap an exception on that by saying, well, overpayment in 24-11, even though it says annual overpayment needs annual overpayment, except overpayments that are made and challenged in the context of a down-to-suit under a self-executing constitution of the Constitution of the Section of the Tax Fund. But both of those are within the, there's a reference in 24-11 back to the overpayment rate established on the Section 6621 of the Internal Revenue Code. Yes

. With respect to that, if in fact it's an overpayment, then your entitled interest on all of it for just the specific last three years instead of the first three. You've had an opportunity to recover for six years rather than three, because if you went through the administrative process, you only would have been able to recover for three years. That's correct. Without question, the interest would have been due. That's correct. Why is it applicable to an overpayment, quote, in quotation marks? I'm not quite sure it's still an overpayment, with respect to the first three years. Well, really what's happened is, in this case, the taxpayers filed administrative claims were issued administrative refunds for those claims and were paid interest on those claims. That interest payment was pursuing the voucher of Section 6611 of the tax code, which provides for interest on overpayments who were funded administratively. 24-11 provides broadly for interest in any judgment for any overpayment. It's nothing that limits it to the administrative period. So for the earlier three years, 24-11 would essentially apply to that three-year period. Well, when I was saying that 66-11 would apply necessarily to the early three-year period. But 24-11 would apply to the tax payments that were covered by and refunded pursuant to the judgment. 66-21, 66-11

. Yes, the rate would be the same rate for any internal or any judgment. Yes. With respect to the distinction between the illegal extraction and the tax, give me things to say about that. Does this end illegal extraction rather than the tax? Well, a tax is an illegal extraction. And in this case, we did have an illegal extraction, but under this court's precedent, and indeed is recognizing psychosamics in the pattern, an illegal extraction, even if in the form of a tax, maybe challenged if there was a money-mandating constitutional provision that provides a substantive clause of action for damages, the illegal extraction may be challenged under directly based on that money-mandating provision. So as to invoke the court, that will claim jurisdiction. There are really two bases, is a illegal extraction basis. And then there's the damages money-mandating basis. Now, the government has argued that they're mutually exclusive, but they're not. Basically, if you don't have an illegal extraction in such a case, a litigant has only one choice but to invoke a money-mandating provision. But in this case, as in had her, taxpayers paid an illegal extraction, but the substance of rape evolved from the money-mandating provision of the constitution. So that could be a price to the cause of action for damages, but an illegal extraction and attacks are not mutually exclusive. But you don't want to crack up too far into the legal extraction area, so the little ways you end up looking at an open judgment interest, right? There's an illegal extraction. Right

. Well, if there's a tax overpayment, well, I understand it's a tax overpayment. But if it's an illegal extraction, can you get a pre-judgement interest on an illegal extraction? Well, just as a general matter, that may perhaps be the case in some other instance, but where you have a tax that was unlawfully exact, it's a tax overpayment, and there's a specific waiver of sovereign immunity with respect to tax overpayments. But not for an illegal extraction. Well, I'm not, frankly, as familiar in what the parameters are just in terms of general illegal executions in terms of interest. There has to be a waiver of sovereign immunity. You have to be statute in order to get interest in any case. Well, that's really why you're asking for it, because you're classifying as an overpayment of tax, right? Yes. And not as overpayment as an illegal extraction. Well, in that sense, yes. It's not an overpayment of tax. So you don't want to back up too far into the legal execuary. And indeed, we're not deceiving as an illegal extraction and deceiving damages on the amount of money on an anti-impervation with regard to the tax overpayment. Okay, let's hear from the government. And we'll save your rebuttal time

. Mr. Rappenberg. Thank you, and please support. Having dodged one jurisdictional bullet and getting a damage as a warrant under Cypress A-Max, the tax payers here seek another one and one interest on top of that award. This court is putting in. Well, you know, that's not quite fair. Is it? I mean, is it not that the statute was unconstitutional? It's no doubt that they paid the tax under the statute. So why is this dodging a bullet? Because Congress has decided when money that is owed will be paid under statute and notations. So that when I've firted dodging the first jurisdictional bullet, that is getting money back for six years instead of three. I may have overpaid my taxes 10 years ago, and that's wrong, but I can't get it back from 10 years ago. So this taxpayer has been doing this for 10 years. Excuse me. I'm asking for 10 years. They are seeking, in addition to the tax refund for three years

. And the damages under Cypress A-Max, they want interest on the damages. And that's where we part company, but we part company in Cypress A-Max, but we also part company, especially on the interest, because there is no, without a statute, the government is not live for interest. There is no statute that says a taxpayer who see if a damages award is entitled to interest. And that's what this case is all about. They received an award of damages. They did not receive an award for overpaying their taxes. But Mr. Oathenberg, if you read the language of 28 USC 2411, this is that very broad, it's very clear. It says in any judgment of any court rendered for any overpayment, for respect of any internal revenue tax, interest shall be allowed under 6621. If you look at the breadth of that language. If you compare that, in this court in Cypress A-Max, looked at the language, I'm sorry, the same for refund provision, which has a similar phrase allergy, which is instead of for an overpayment, for the recovery of any internal revenue tax that they should have been erroneously or illegally assessed or collected. The Supreme Court back in 1947 in Jones versus Liberty Glass said when Congress switched between the shortened version for an overpayment and the longer version for the recovery of any internal revenue tax, illegally or erroneously assessed or collected. The Supreme Court said they're basically the same. This was a short-hand description

. They were describing the same things. Now, if this court, which it held in Cypress A-Max, believes that the amounts that this taxpayer paid in the earlier years were not for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, so they are not bound by the tax refund system. Then they don't come within 2411, which has essentially the same phrase allergy. That's exactly what the claims court held in the case below and the companion case of Yusseveli, which goes through a very long discussion of this very point about how the wording of 2411 in 7422 were essentially the same for a period of years, and then one of the terms was shortened without any indication by Congress as any difference in meaning was intended. Now, we of course submit that both of these should be interpreted the same, and therefore, as the second part of our argument, getting the Cypress A-Max, we think that was wrongly decided, but in any respect... Well, you voted, you stated that once. Well, I probably said to some more, you don't think there was enough wisdom in the Cypress the court did not have sufficient wisdom in the Cypress. Well, I stand here before the judgment road Cypress A-Max, so I will be a little delicate on that, but institutionally, you do believe that that's... Mr. Trice, for the court, you kind of assume that the court has accepted that

. You kind of request that it be reversed on that, but it's not a personal debate. Sometimes, to get back to the interest in Cypress A-Max, this court was careful to say, you are not in the tax refund system, therefore, you did not receive, but the earlier three years, an overpayment of tax, would you receive, under Cypress A-Max, was a damages report? And a damages report is not an overpayment of tax. The measure of damages may be based on how much tax you overpay, but under the statute, under the Constitution, you are not receiving payment for a tax overpayment. What would you call that a no legal exemption? Well, this court, I'm sorry, the court claims in Eastport described the legal exactional on the one hand and money mandating on the other. Illegal exactional cases seem to be the ones where you paid something you want to pay. In our view, this whole case, Cypress A-Max, was a legal exactional, this court disagree. This court said no, in Cypress A-Max, that is a damages report. You have two alternative ways you can proceed. So because it was damages, it was not that by definition they did not receive a repayment of an illegal exemption. They received damages, just like the harbor maintenance tax, folks, they received damages, just like the cold reclamation cases that this court has already addressed. They received damages. And once you receive damages, it is a different ballgame. You are outside and independent of all of the statutes that deal with when a taxpayer gets interest on money, the tax money that is paid back to him. But that's if we agree with it, it was damages rather than overpayment. Well, your honor, if it was an overpayment, then the underpinnings of Cypress A-Max, no, to me, this court could not award them interest without overruling Cypress A-Max. And then they won't get it anyway because Cypress A-Max is won, then they don't even get the principal, much less the interest for the earlier three years. So we don't see how, given the structure of Cypress A-Max, that this taxpayer can receive interest for the earlier three years, because this court in Cypress A-Max said, you're not recovering a tax overpayment for the earlier three years, you're recovering under the export clause, which this court said was money-manned. Now, of course, we disagree with that, but accepting that for now, they still cannot get an award of interest. Now, you might think the will gee, anyone who is injured and recovered damages, well, if it's delaying payment, you should receive interest. Well, that's always the case. We're not trying to overrul a key in economics here, but the point is Congress decides not the internal revenue service when interest is going to be paid. And even in some of the earlier cases, I believe it was this court's discussion of the harbor maintenance tax, where it held no interest to the taxpayers and harbor maintenance tax, pointed out, used the word something like perfect equivalence would be principal plus interest, but we cannot give you the interest. And even though perfect equivalence might be principal and interest, this court cannot award these taxpayers' interest for the first three years. So basically, as Sharon Alyssa taxpayer goes through the administrative process in the summer before 22, 24-11 is not applied, coming into recovery on the judgment. You would have to receive a tax overpayment, and because to receive a tax overpayment, you can't just go white into court and sue. You would actually have to file a refund claim. Now, you don't have to pursue the administrative process, you have to file a refund claim. If I arrest sits on it, you can then go into court, and you will get your principal if you're right, and you will get your interest

. Well, your honor, if it was an overpayment, then the underpinnings of Cypress A-Max, no, to me, this court could not award them interest without overruling Cypress A-Max. And then they won't get it anyway because Cypress A-Max is won, then they don't even get the principal, much less the interest for the earlier three years. So we don't see how, given the structure of Cypress A-Max, that this taxpayer can receive interest for the earlier three years, because this court in Cypress A-Max said, you're not recovering a tax overpayment for the earlier three years, you're recovering under the export clause, which this court said was money-manned. Now, of course, we disagree with that, but accepting that for now, they still cannot get an award of interest. Now, you might think the will gee, anyone who is injured and recovered damages, well, if it's delaying payment, you should receive interest. Well, that's always the case. We're not trying to overrul a key in economics here, but the point is Congress decides not the internal revenue service when interest is going to be paid. And even in some of the earlier cases, I believe it was this court's discussion of the harbor maintenance tax, where it held no interest to the taxpayers and harbor maintenance tax, pointed out, used the word something like perfect equivalence would be principal plus interest, but we cannot give you the interest. And even though perfect equivalence might be principal and interest, this court cannot award these taxpayers' interest for the first three years. So basically, as Sharon Alyssa taxpayer goes through the administrative process in the summer before 22, 24-11 is not applied, coming into recovery on the judgment. You would have to receive a tax overpayment, and because to receive a tax overpayment, you can't just go white into court and sue. You would actually have to file a refund claim. Now, you don't have to pursue the administrative process, you have to file a refund claim. If I arrest sits on it, you can then go into court, and you will get your principal if you're right, and you will get your interest. There's no question whether you've received administrative or judicially, for the three years that Congress said you can get money back, you get principal plus interest. But when you extend that and go beyond the three years, the only way you can do that is either indicate it, is if on this constitutional Cypress AMACS method, and that got damages for these taxpayers and the other coal companies, but it cannot give them interest. Now, although I would like to discuss the Cypress AMACS case a little bit in the court's local rule, 35A2, which contemplates the exact procedure we have asked for, and that is to ask the panel to submit the Cypress AMACS issue to the whole court. And the reason we're doing that is because, of course, this court has national jurisdiction. And in the terms of tax, in the tax context, any citizen and guy who says can file a suit in this court, so you want to check and play at the apple. Yes, we do. We're going to second by the apple, because we think Cypress AMACS is fundamentally wrong. And I would like to spend a couple of minutes to explain, even to the author of that opinion, why we think Cypress AMACS is a court-office. No individual court-office. And I recognize that on-balk was denied, and served was denied. But both on-balk, we hear an on-balk, and serve our discretionary actions, and they can be denied for any reason. Well, you have five minutes if you wish to use it in arguing why that case was wrongly decided, proceed. I will suspend a couple of minutes on that. The reason we think Cypress AMACS was wrongly decided is because we think there are two critical flaws to Cypress AMACS

. There's no question whether you've received administrative or judicially, for the three years that Congress said you can get money back, you get principal plus interest. But when you extend that and go beyond the three years, the only way you can do that is either indicate it, is if on this constitutional Cypress AMACS method, and that got damages for these taxpayers and the other coal companies, but it cannot give them interest. Now, although I would like to discuss the Cypress AMACS case a little bit in the court's local rule, 35A2, which contemplates the exact procedure we have asked for, and that is to ask the panel to submit the Cypress AMACS issue to the whole court. And the reason we're doing that is because, of course, this court has national jurisdiction. And in the terms of tax, in the tax context, any citizen and guy who says can file a suit in this court, so you want to check and play at the apple. Yes, we do. We're going to second by the apple, because we think Cypress AMACS is fundamentally wrong. And I would like to spend a couple of minutes to explain, even to the author of that opinion, why we think Cypress AMACS is a court-office. No individual court-office. And I recognize that on-balk was denied, and served was denied. But both on-balk, we hear an on-balk, and serve our discretionary actions, and they can be denied for any reason. Well, you have five minutes if you wish to use it in arguing why that case was wrongly decided, proceed. I will suspend a couple of minutes on that. The reason we think Cypress AMACS was wrongly decided is because we think there are two critical flaws to Cypress AMACS. And the first one deals with the clause that it was decided on. That was decided on the export clause. The only money-mandating, aside from Cypress AMACS, on money-mandating constitutional provisions are the takings clause and the judicial compensation clause. Both of those clauses have the word in the Constitution compensation. And that's why those are, those were held to be money-mandating. The government does something wrong. They have to make compensation. The export clause is different. Even the federal circuit and the US shoe case, dealing with the Harvard Maintenance Tax Interest, recognize that the export clause is different from the judicial compensation clause. So we think the first flaw was equating the export clause, essentially a prohibitory clause, as money-mandating. So we do not think the export clause is money-mandating. The second critical flaw. You don't think the Supreme Court does consider it money-mandating? The Supreme Court is not ruled on the export clause as being money-mandating. No, it is not

. And the first one deals with the clause that it was decided on. That was decided on the export clause. The only money-mandating, aside from Cypress AMACS, on money-mandating constitutional provisions are the takings clause and the judicial compensation clause. Both of those clauses have the word in the Constitution compensation. And that's why those are, those were held to be money-mandating. The government does something wrong. They have to make compensation. The export clause is different. Even the federal circuit and the US shoe case, dealing with the Harvard Maintenance Tax Interest, recognize that the export clause is different from the judicial compensation clause. So we think the first flaw was equating the export clause, essentially a prohibitory clause, as money-mandating. So we do not think the export clause is money-mandating. The second critical flaw. You don't think the Supreme Court does consider it money-mandating? The Supreme Court is not ruled on the export clause as being money-mandating. No, it is not. What about the Harvard Maintenance Tax? The Harvard Maintenance was not, in the reason, and I'll get to, this is the second flaw. The second flaw is the Harvard Maintenance Tax. The taxpayers, or the co-, I forgot who it was, the taxpayers in the Harvard Maintenance, they had filed an administrative claim under the customs laws. They had done what they should have done administratively to get their money back. So when this court in US shoe, and the Harvard Maintenance Tax said, I'm sorry, in Cypress AMX, this court relied on its own decision in US shoe. It said, well, Supreme Court said the Harvard Maintenance Tax is unconstitutional, and you're entitled to get your money back. And in US shoe, this court gave them the money back, and the Supreme Court affirmed that. My point is that in US shoe, this court did not hold that the taxpayers in the Harvard Maintenance Tax were entitled to it because the export clause was money-meanted. This court held they were entitled to it because they filed the appropriate papers under the customs laws. So that's why the Supreme Court said, once they found the Harvard Maintenance Tax is unconstitutional, they were entitled to get their money back because they filed whatever they were supposed to under the customs laws. Our point is these taxpayers did not file what they had to under the tax laws. So this court in US shoe, well, they did file it for the first three. I mean, don't just talk about the earliest for years. The earliest for you

. What about the Harvard Maintenance Tax? The Harvard Maintenance was not, in the reason, and I'll get to, this is the second flaw. The second flaw is the Harvard Maintenance Tax. The taxpayers, or the co-, I forgot who it was, the taxpayers in the Harvard Maintenance, they had filed an administrative claim under the customs laws. They had done what they should have done administratively to get their money back. So when this court in US shoe, and the Harvard Maintenance Tax said, I'm sorry, in Cypress AMX, this court relied on its own decision in US shoe. It said, well, Supreme Court said the Harvard Maintenance Tax is unconstitutional, and you're entitled to get your money back. And in US shoe, this court gave them the money back, and the Supreme Court affirmed that. My point is that in US shoe, this court did not hold that the taxpayers in the Harvard Maintenance Tax were entitled to it because the export clause was money-meanted. This court held they were entitled to it because they filed the appropriate papers under the customs laws. So that's why the Supreme Court said, once they found the Harvard Maintenance Tax is unconstitutional, they were entitled to get their money back because they filed whatever they were supposed to under the customs laws. Our point is these taxpayers did not file what they had to under the tax laws. So this court in US shoe, well, they did file it for the first three. I mean, don't just talk about the earliest for years. The earliest for you. This court in you, in Cypress, AIMX, this court held that, and get the exact language, that under US shoe, the export clause includes a correlative right to money damages as a remedy for its violation. This court in US shoe did not hold that, and the Supreme Court did not hold that. So we think the second critical flaw is that this court in Cypress AIMX improperly relied on its own decision in US shoe, which did not hold that the export clause was money-manned it. If this court didn't hold the export clause as money-manned it in US shoe, the Supreme Court's affirmance also didn't hold this one. I would back and look at the yellow briefs of a file by the government the first time around. Those were the exact arguments were made that? Exact arguments. And this court considered them, found them faulty, and dismissed them. So why should we do it all over again? Well, the issue is important enough that if this panel thinks it's worthy, we respectfully would request that it's submitted to the full court on the Cypress AIMX issue. This is a discretionary matter for this panel. That's what the local rule indicates. And we've tried to make our best arguments to why we think, with all due respect, that Cypress AIMX was wrong on the site. That's my argument on Cypress AIMX. Does the court have any other questions on the interest issue? Of course. Thank you, Mr

. This court in you, in Cypress, AIMX, this court held that, and get the exact language, that under US shoe, the export clause includes a correlative right to money damages as a remedy for its violation. This court in US shoe did not hold that, and the Supreme Court did not hold that. So we think the second critical flaw is that this court in Cypress AIMX improperly relied on its own decision in US shoe, which did not hold that the export clause was money-manned it. If this court didn't hold the export clause as money-manned it in US shoe, the Supreme Court's affirmance also didn't hold this one. I would back and look at the yellow briefs of a file by the government the first time around. Those were the exact arguments were made that? Exact arguments. And this court considered them, found them faulty, and dismissed them. So why should we do it all over again? Well, the issue is important enough that if this panel thinks it's worthy, we respectfully would request that it's submitted to the full court on the Cypress AIMX issue. This is a discretionary matter for this panel. That's what the local rule indicates. And we've tried to make our best arguments to why we think, with all due respect, that Cypress AIMX was wrong on the site. That's my argument on Cypress AIMX. Does the court have any other questions on the interest issue? Of course. Thank you, Mr. Rottenberg. Mr. Harlow. I just want to touch upon the Cypress issue very briefly, and then go back to the interest, and then finish with the Cypress. I just want to correct an error at government council just made with respect to the United States' shoot, Harper Maintenance case. That was a damages case. The Supreme Court specifically held in the US shoot case that there were no administrative and swastling requirements that had to be fulfilled, because there was no protestable decision that the Custom Service made. Therefore, there was no requirement to file and administrative protest with Customs. Therefore, the exporters could go directly into the Court of International Trade, pursuing to that court's residual jurisdiction, 20 AD USC 1581 I. So therefore, the government's incorrect the premise of why US shoot did not recognize the money damages nature of the exporters. It's just incorrect. I would just like to go back to the interest issue. The government says, well, what we have is an award of damages, but I would ask, what were those damages for? They were four attacks over the payment. That really is the end of the issue, given the breadth of 2411

. Rottenberg. Mr. Harlow. I just want to touch upon the Cypress issue very briefly, and then go back to the interest, and then finish with the Cypress. I just want to correct an error at government council just made with respect to the United States' shoot, Harper Maintenance case. That was a damages case. The Supreme Court specifically held in the US shoot case that there were no administrative and swastling requirements that had to be fulfilled, because there was no protestable decision that the Custom Service made. Therefore, there was no requirement to file and administrative protest with Customs. Therefore, the exporters could go directly into the Court of International Trade, pursuing to that court's residual jurisdiction, 20 AD USC 1581 I. So therefore, the government's incorrect the premise of why US shoot did not recognize the money damages nature of the exporters. It's just incorrect. I would just like to go back to the interest issue. The government says, well, what we have is an award of damages, but I would ask, what were those damages for? They were four attacks over the payment. That really is the end of the issue, given the breadth of 2411. Now, the government tries to equate the language of 2411 with the language in the tax refund statute, 26 USC 7422. 2411 initially, back in the 20s, instead of her prompting an overpayment, referred to taxes that were only readily assessed or collected. And that is the language that's currently in tax refund provision. But where the government is incorrect, and that's the same error that the Court of Federal claims made in the use of any case that the government referred to, was that when Cyprus held that the cult produced, when I was subject to the requirements of the tax refund statute, it held, so held because Cyprus recognized that the cult produces had two roots to proceed, could have proceeded in tax refund action or damages action. But in no way did Cyprus suggest that proceeding by way of the second root, the damages action negated the existence of an overpayment. And that's the language that's in 2411, it doesn't refer to tax refund statute. So we submit it just because there is a similarity in terms of the overpayment and accomplishing the tax erroneously or illegally assessed, that's simply because the taxpayers had a different root that negated the existence of an overpayment in 2411. Regarding in the IBM, the government correctly showed that there was not necessarily perfect equivalence, but again, IBM recognized that the only reason why you did not have that perfect equivalence was because it was unique for a collusive language in the Harbor Maintenance tax statute. And there is no dispute that there is no similar collusive language. It says don't treat the cult excise tax as a tax, either in a cult excise tax statute or any other statute for that. Let me tell you how my thinking has been going in this case. It seems on the one hand fairly straightforward. The government had your money, they weren't entitled to it. It's been so held and they should pay for the value of that money

. Now, the government tries to equate the language of 2411 with the language in the tax refund statute, 26 USC 7422. 2411 initially, back in the 20s, instead of her prompting an overpayment, referred to taxes that were only readily assessed or collected. And that is the language that's currently in tax refund provision. But where the government is incorrect, and that's the same error that the Court of Federal claims made in the use of any case that the government referred to, was that when Cyprus held that the cult produced, when I was subject to the requirements of the tax refund statute, it held, so held because Cyprus recognized that the cult produces had two roots to proceed, could have proceeded in tax refund action or damages action. But in no way did Cyprus suggest that proceeding by way of the second root, the damages action negated the existence of an overpayment. And that's the language that's in 2411, it doesn't refer to tax refund statute. So we submit it just because there is a similarity in terms of the overpayment and accomplishing the tax erroneously or illegally assessed, that's simply because the taxpayers had a different root that negated the existence of an overpayment in 2411. Regarding in the IBM, the government correctly showed that there was not necessarily perfect equivalence, but again, IBM recognized that the only reason why you did not have that perfect equivalence was because it was unique for a collusive language in the Harbor Maintenance tax statute. And there is no dispute that there is no similar collusive language. It says don't treat the cult excise tax as a tax, either in a cult excise tax statute or any other statute for that. Let me tell you how my thinking has been going in this case. It seems on the one hand fairly straightforward. The government had your money, they weren't entitled to it. It's been so held and they should pay for the value of that money. But neither side has discussed very much the principle behind the three-year limitation, either that when it's over, it's over. And if, in fact, the claim was not filed until after the three years, that there's something to be said for leaving the Treasury invulnerable to a retroactive claim to this period. That's more a policy consideration, but I think we've all recognized that there seems to be nothing directly in point. How do you balance these policies in your favor, of course? But what's your answer to that? Well, with regard to the public this and the Treasury, in the venture coal decision, this court, in speaking to six-year limitations period applicable to damages actions under the export clause and the co-exise tax scenario, I recognize that the six-year limitations period, albeit longer than the three, still provides the government with an ability to adequately plan financially. So even though it's a longer limitations period, it's not open-ended, and this court has recognized that that is a finite period that the government can do its financial planning with. Now, with regard to the policy, in 1924, this leads regarding the predecessor to the Internal Revenue Code's interest provision. Originally, had an requirement that an administrative claim was a precondition to interest, and that was repealed, and explaining why that was repealed. You don't even need to have an administrative claim necessarily under the tax current interest provision. Congress recognized that what is critical for the entitlement to interest is simply the existence of an overpayment. The simple fact that you pay its tax payer more than you are obligated to pay gives rise to the entitlement to interest, and that's why there's this broad line which is an overpayment. Now, clearly, in this case, it would be for six years rather than three years, but we have a, Congress has an active statute of limitations that covers this action six years. And we have an overpayment, and Congress has recognized that in tax overpayment cases, taxpayers should get interest. And just because it's six years rather than three years, it's still what Congress intended. They've intended that if you're a taxpayer and you can challenge a tax payment, and you're within the whatever applicable limitations period is out there, you should get interest

. But neither side has discussed very much the principle behind the three-year limitation, either that when it's over, it's over. And if, in fact, the claim was not filed until after the three years, that there's something to be said for leaving the Treasury invulnerable to a retroactive claim to this period. That's more a policy consideration, but I think we've all recognized that there seems to be nothing directly in point. How do you balance these policies in your favor, of course? But what's your answer to that? Well, with regard to the public this and the Treasury, in the venture coal decision, this court, in speaking to six-year limitations period applicable to damages actions under the export clause and the co-exise tax scenario, I recognize that the six-year limitations period, albeit longer than the three, still provides the government with an ability to adequately plan financially. So even though it's a longer limitations period, it's not open-ended, and this court has recognized that that is a finite period that the government can do its financial planning with. Now, with regard to the policy, in 1924, this leads regarding the predecessor to the Internal Revenue Code's interest provision. Originally, had an requirement that an administrative claim was a precondition to interest, and that was repealed, and explaining why that was repealed. You don't even need to have an administrative claim necessarily under the tax current interest provision. Congress recognized that what is critical for the entitlement to interest is simply the existence of an overpayment. The simple fact that you pay its tax payer more than you are obligated to pay gives rise to the entitlement to interest, and that's why there's this broad line which is an overpayment. Now, clearly, in this case, it would be for six years rather than three years, but we have a, Congress has an active statute of limitations that covers this action six years. And we have an overpayment, and Congress has recognized that in tax overpayment cases, taxpayers should get interest. And just because it's six years rather than three years, it's still what Congress intended. They've intended that if you're a taxpayer and you can challenge a tax payment, and you're within the whatever applicable limitations period is out there, you should get interest. And that's why the taxpayer should get interest in this case. Thank you. Thank you, Mr. Harlow. Mr. Rothenberg, the case is taken under submission.

Good morning everyone. First case this morning is number 045155. Clint Whittell corn mining against the United States. Mr. Harwoods. May please the floor. The judgment of the United States Court of Federal Planes that denied interest on the award of damages for the government's unconstitutional taxation, the election balance exports of coal should be reversed. Because the damages awarded for the unconstitutional taxation of coal and therefore the damages for an overpayment of an internal revenue tax. Now are you talking only about the first three years? Is it conceded that you're entitled to interest for the most recent three years? Yes, the government agrees and indeed with the refunds for those three paid interest on those the administrative. At the provision in question, 20 of USC section 2411 authorizes interest in any judgment, any overpayment in respect of any internal revenue tax. And the damages awarded for for an overpayment of an internal revenue tax is no dispute that the coal ex-sized tax is an internal revenue tax. It's no dispute that the balance payment of those taxes is an overpayment. So we submit that under the plain language of section 2411, the requirements met and that the judgment issue will be at for damages as it is a judgment for an overpayment in respect of any internal revenue tax. The government is arguing that 2411 is part of the overall tax revenue scheme and that the New York claim under the constitution is a separate claim outside that provision relying on the economy case. What's your comment on that? Yes, the government maintains that and this is where we believe the Court of Federal claims error that 2411 is nothing more than just another part of what the government first does, the tax refund system. 2411 in fact is broader than that. In this Court's decision in IBM, the Court recognized that 2411 is a provision of law relating to the administration and enforcement of taxes. But the Court did not equate administration enforcement solely with a tax refund. It recognized that administration and enforcement is a broad concept that includes a Court's issuance of judgments and a Court's Q to the issuance of interest on a judgment. And significantly, the judicial role in the IBM case was an issue into the judgment in a lawsuit very similar to the lawsuit issue in this case. It was a lawsuit for damages based on the export clause that was filed instead of in the Court of Federal claims in the Court of International Trade. But that was not a lawsuit that was filed within the confines of tax refund system. It was essentially a super damages under the export clause in the Court of International Trade. And in that case, the IBM Court looked to see it was a claim for interest on hard-to-maintain tax, the monetary judgment for hard-to-maintain tax. And the Court set out its analysis by saying, we've got to have a waiver of the government's sovereign immunity to a board of interests. And if such a statute exists, we then have to see whether the provisions of the H&T statute are the application of that waiver. In the Court examined the various possible sources of the waiver. And when the Court came upon 24-11, the Court found that, agreed with IBM's argument, that 24-11 has been broadly construed and in fact was broad enough to cover the case before the court. The only reason why 24-11, in the waiver of 24-11, he was not applied was because the hard-to-maintain tax statute contains some rather unique language, he said, do not treat the H&T as a tax for purposes of administration and enforcement provisions. And the IBM Court therefore was called upon to determine what is meant by administration and enforcement. And it determined that it's a very broad concept that was broad enough to cover what the Court of International Trade had done in that case. And I got a good distinguishing economy plumbing as a case that was essentially a contract case. And that the recovery was indeed a recovery for contract damages and not at all a tax. It was entirely outside the tax system. That's correct. The counter-common is very distinguishable from this case and indeed from IBM as well. In that case, the recovery was a recovery in contract action and GAO basically diverted the funds and paid it over to the IRS to satisfy a tax in the end against the plaintiff's partner and the joint venture. And the plaintiff argued, well, that makes it a tax over payment. And the entire thrust of the common plumbing was that the plaintiff was not a tax payer, had not made a tax payment, and therefore did not satisfy the fundamental prerequisite of the interest of 24-11. Now, the government, like the Court of Federal Plains below, relies heavily on dictate an economy plumbing that refer to the administrative system. But we submit that that dictat is very unremarkable and totally applicable to this case. Because in a common plumbing, the only way that the plaintiff could have to see it, had it made a tax over payment. Was by filing a tax refund plan. There was no money mandating constitutional provision akin to the export clause of the judicial compensation clause in that case. So that would have been the only route that the plaintiff could have gone. So in order to get interest, the plaintiff would have had to admit a tax payer, filed a maybe tax over payment, and proceeded within the administrative system. And that's exactly what the Court of Federal Plains, rather the Court of Plains, said in a common plumbing. But the Court did not report to examine a situation that was not presented with, as we have here, where there is a tax over payment. And the plaintiff can proceed with respect to that tax over payment outside the tax refund system. It's just not before the Court of Economy Plumbing and the Court did not report to address such a situation in that case. Mr. Horowitz, how are you defining over payment? Why is this an over payment? Overpayment has been very broadly defined by the United States Supreme Court. Essentially, is any payment in excess of that, which is lawfully or properly for whatever reason? And certainly, a payment of an unconstitutional tax clause, well within the definition of overpayment. There is really no dispute in terms of what the meaning of overpayment is in this case. The government seeks to really engrap an exception on that by saying, well, overpayment in 24-11, even though it says annual overpayment needs annual overpayment, except overpayments that are made and challenged in the context of a down-to-suit under a self-executing constitution of the Constitution of the Section of the Tax Fund. But both of those are within the, there's a reference in 24-11 back to the overpayment rate established on the Section 6621 of the Internal Revenue Code. Yes. With respect to that, if in fact it's an overpayment, then your entitled interest on all of it for just the specific last three years instead of the first three. You've had an opportunity to recover for six years rather than three, because if you went through the administrative process, you only would have been able to recover for three years. That's correct. Without question, the interest would have been due. That's correct. Why is it applicable to an overpayment, quote, in quotation marks? I'm not quite sure it's still an overpayment, with respect to the first three years. Well, really what's happened is, in this case, the taxpayers filed administrative claims were issued administrative refunds for those claims and were paid interest on those claims. That interest payment was pursuing the voucher of Section 6611 of the tax code, which provides for interest on overpayments who were funded administratively. 24-11 provides broadly for interest in any judgment for any overpayment. It's nothing that limits it to the administrative period. So for the earlier three years, 24-11 would essentially apply to that three-year period. Well, when I was saying that 66-11 would apply necessarily to the early three-year period. But 24-11 would apply to the tax payments that were covered by and refunded pursuant to the judgment. 66-21, 66-11. Yes, the rate would be the same rate for any internal or any judgment. Yes. With respect to the distinction between the illegal extraction and the tax, give me things to say about that. Does this end illegal extraction rather than the tax? Well, a tax is an illegal extraction. And in this case, we did have an illegal extraction, but under this court's precedent, and indeed is recognizing psychosamics in the pattern, an illegal extraction, even if in the form of a tax, maybe challenged if there was a money-mandating constitutional provision that provides a substantive clause of action for damages, the illegal extraction may be challenged under directly based on that money-mandating provision. So as to invoke the court, that will claim jurisdiction. There are really two bases, is a illegal extraction basis. And then there's the damages money-mandating basis. Now, the government has argued that they're mutually exclusive, but they're not. Basically, if you don't have an illegal extraction in such a case, a litigant has only one choice but to invoke a money-mandating provision. But in this case, as in had her, taxpayers paid an illegal extraction, but the substance of rape evolved from the money-mandating provision of the constitution. So that could be a price to the cause of action for damages, but an illegal extraction and attacks are not mutually exclusive. But you don't want to crack up too far into the legal extraction area, so the little ways you end up looking at an open judgment interest, right? There's an illegal extraction. Right. Well, if there's a tax overpayment, well, I understand it's a tax overpayment. But if it's an illegal extraction, can you get a pre-judgement interest on an illegal extraction? Well, just as a general matter, that may perhaps be the case in some other instance, but where you have a tax that was unlawfully exact, it's a tax overpayment, and there's a specific waiver of sovereign immunity with respect to tax overpayments. But not for an illegal extraction. Well, I'm not, frankly, as familiar in what the parameters are just in terms of general illegal executions in terms of interest. There has to be a waiver of sovereign immunity. You have to be statute in order to get interest in any case. Well, that's really why you're asking for it, because you're classifying as an overpayment of tax, right? Yes. And not as overpayment as an illegal extraction. Well, in that sense, yes. It's not an overpayment of tax. So you don't want to back up too far into the legal execuary. And indeed, we're not deceiving as an illegal extraction and deceiving damages on the amount of money on an anti-impervation with regard to the tax overpayment. Okay, let's hear from the government. And we'll save your rebuttal time. Mr. Rappenberg. Thank you, and please support. Having dodged one jurisdictional bullet and getting a damage as a warrant under Cypress A-Max, the tax payers here seek another one and one interest on top of that award. This court is putting in. Well, you know, that's not quite fair. Is it? I mean, is it not that the statute was unconstitutional? It's no doubt that they paid the tax under the statute. So why is this dodging a bullet? Because Congress has decided when money that is owed will be paid under statute and notations. So that when I've firted dodging the first jurisdictional bullet, that is getting money back for six years instead of three. I may have overpaid my taxes 10 years ago, and that's wrong, but I can't get it back from 10 years ago. So this taxpayer has been doing this for 10 years. Excuse me. I'm asking for 10 years. They are seeking, in addition to the tax refund for three years. And the damages under Cypress A-Max, they want interest on the damages. And that's where we part company, but we part company in Cypress A-Max, but we also part company, especially on the interest, because there is no, without a statute, the government is not live for interest. There is no statute that says a taxpayer who see if a damages award is entitled to interest. And that's what this case is all about. They received an award of damages. They did not receive an award for overpaying their taxes. But Mr. Oathenberg, if you read the language of 28 USC 2411, this is that very broad, it's very clear. It says in any judgment of any court rendered for any overpayment, for respect of any internal revenue tax, interest shall be allowed under 6621. If you look at the breadth of that language. If you compare that, in this court in Cypress A-Max, looked at the language, I'm sorry, the same for refund provision, which has a similar phrase allergy, which is instead of for an overpayment, for the recovery of any internal revenue tax that they should have been erroneously or illegally assessed or collected. The Supreme Court back in 1947 in Jones versus Liberty Glass said when Congress switched between the shortened version for an overpayment and the longer version for the recovery of any internal revenue tax, illegally or erroneously assessed or collected. The Supreme Court said they're basically the same. This was a short-hand description. They were describing the same things. Now, if this court, which it held in Cypress A-Max, believes that the amounts that this taxpayer paid in the earlier years were not for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, so they are not bound by the tax refund system. Then they don't come within 2411, which has essentially the same phrase allergy. That's exactly what the claims court held in the case below and the companion case of Yusseveli, which goes through a very long discussion of this very point about how the wording of 2411 in 7422 were essentially the same for a period of years, and then one of the terms was shortened without any indication by Congress as any difference in meaning was intended. Now, we of course submit that both of these should be interpreted the same, and therefore, as the second part of our argument, getting the Cypress A-Max, we think that was wrongly decided, but in any respect... Well, you voted, you stated that once. Well, I probably said to some more, you don't think there was enough wisdom in the Cypress the court did not have sufficient wisdom in the Cypress. Well, I stand here before the judgment road Cypress A-Max, so I will be a little delicate on that, but institutionally, you do believe that that's... Mr. Trice, for the court, you kind of assume that the court has accepted that. You kind of request that it be reversed on that, but it's not a personal debate. Sometimes, to get back to the interest in Cypress A-Max, this court was careful to say, you are not in the tax refund system, therefore, you did not receive, but the earlier three years, an overpayment of tax, would you receive, under Cypress A-Max, was a damages report? And a damages report is not an overpayment of tax. The measure of damages may be based on how much tax you overpay, but under the statute, under the Constitution, you are not receiving payment for a tax overpayment. What would you call that a no legal exemption? Well, this court, I'm sorry, the court claims in Eastport described the legal exactional on the one hand and money mandating on the other. Illegal exactional cases seem to be the ones where you paid something you want to pay. In our view, this whole case, Cypress A-Max, was a legal exactional, this court disagree. This court said no, in Cypress A-Max, that is a damages report. You have two alternative ways you can proceed. So because it was damages, it was not that by definition they did not receive a repayment of an illegal exemption. They received damages, just like the harbor maintenance tax, folks, they received damages, just like the cold reclamation cases that this court has already addressed. They received damages. And once you receive damages, it is a different ballgame. You are outside and independent of all of the statutes that deal with when a taxpayer gets interest on money, the tax money that is paid back to him. But that's if we agree with it, it was damages rather than overpayment. Well, your honor, if it was an overpayment, then the underpinnings of Cypress A-Max, no, to me, this court could not award them interest without overruling Cypress A-Max. And then they won't get it anyway because Cypress A-Max is won, then they don't even get the principal, much less the interest for the earlier three years. So we don't see how, given the structure of Cypress A-Max, that this taxpayer can receive interest for the earlier three years, because this court in Cypress A-Max said, you're not recovering a tax overpayment for the earlier three years, you're recovering under the export clause, which this court said was money-manned. Now, of course, we disagree with that, but accepting that for now, they still cannot get an award of interest. Now, you might think the will gee, anyone who is injured and recovered damages, well, if it's delaying payment, you should receive interest. Well, that's always the case. We're not trying to overrul a key in economics here, but the point is Congress decides not the internal revenue service when interest is going to be paid. And even in some of the earlier cases, I believe it was this court's discussion of the harbor maintenance tax, where it held no interest to the taxpayers and harbor maintenance tax, pointed out, used the word something like perfect equivalence would be principal plus interest, but we cannot give you the interest. And even though perfect equivalence might be principal and interest, this court cannot award these taxpayers' interest for the first three years. So basically, as Sharon Alyssa taxpayer goes through the administrative process in the summer before 22, 24-11 is not applied, coming into recovery on the judgment. You would have to receive a tax overpayment, and because to receive a tax overpayment, you can't just go white into court and sue. You would actually have to file a refund claim. Now, you don't have to pursue the administrative process, you have to file a refund claim. If I arrest sits on it, you can then go into court, and you will get your principal if you're right, and you will get your interest. There's no question whether you've received administrative or judicially, for the three years that Congress said you can get money back, you get principal plus interest. But when you extend that and go beyond the three years, the only way you can do that is either indicate it, is if on this constitutional Cypress AMACS method, and that got damages for these taxpayers and the other coal companies, but it cannot give them interest. Now, although I would like to discuss the Cypress AMACS case a little bit in the court's local rule, 35A2, which contemplates the exact procedure we have asked for, and that is to ask the panel to submit the Cypress AMACS issue to the whole court. And the reason we're doing that is because, of course, this court has national jurisdiction. And in the terms of tax, in the tax context, any citizen and guy who says can file a suit in this court, so you want to check and play at the apple. Yes, we do. We're going to second by the apple, because we think Cypress AMACS is fundamentally wrong. And I would like to spend a couple of minutes to explain, even to the author of that opinion, why we think Cypress AMACS is a court-office. No individual court-office. And I recognize that on-balk was denied, and served was denied. But both on-balk, we hear an on-balk, and serve our discretionary actions, and they can be denied for any reason. Well, you have five minutes if you wish to use it in arguing why that case was wrongly decided, proceed. I will suspend a couple of minutes on that. The reason we think Cypress AMACS was wrongly decided is because we think there are two critical flaws to Cypress AMACS. And the first one deals with the clause that it was decided on. That was decided on the export clause. The only money-mandating, aside from Cypress AMACS, on money-mandating constitutional provisions are the takings clause and the judicial compensation clause. Both of those clauses have the word in the Constitution compensation. And that's why those are, those were held to be money-mandating. The government does something wrong. They have to make compensation. The export clause is different. Even the federal circuit and the US shoe case, dealing with the Harvard Maintenance Tax Interest, recognize that the export clause is different from the judicial compensation clause. So we think the first flaw was equating the export clause, essentially a prohibitory clause, as money-mandating. So we do not think the export clause is money-mandating. The second critical flaw. You don't think the Supreme Court does consider it money-mandating? The Supreme Court is not ruled on the export clause as being money-mandating. No, it is not. What about the Harvard Maintenance Tax? The Harvard Maintenance was not, in the reason, and I'll get to, this is the second flaw. The second flaw is the Harvard Maintenance Tax. The taxpayers, or the co-, I forgot who it was, the taxpayers in the Harvard Maintenance, they had filed an administrative claim under the customs laws. They had done what they should have done administratively to get their money back. So when this court in US shoe, and the Harvard Maintenance Tax said, I'm sorry, in Cypress AMX, this court relied on its own decision in US shoe. It said, well, Supreme Court said the Harvard Maintenance Tax is unconstitutional, and you're entitled to get your money back. And in US shoe, this court gave them the money back, and the Supreme Court affirmed that. My point is that in US shoe, this court did not hold that the taxpayers in the Harvard Maintenance Tax were entitled to it because the export clause was money-meanted. This court held they were entitled to it because they filed the appropriate papers under the customs laws. So that's why the Supreme Court said, once they found the Harvard Maintenance Tax is unconstitutional, they were entitled to get their money back because they filed whatever they were supposed to under the customs laws. Our point is these taxpayers did not file what they had to under the tax laws. So this court in US shoe, well, they did file it for the first three. I mean, don't just talk about the earliest for years. The earliest for you. This court in you, in Cypress, AIMX, this court held that, and get the exact language, that under US shoe, the export clause includes a correlative right to money damages as a remedy for its violation. This court in US shoe did not hold that, and the Supreme Court did not hold that. So we think the second critical flaw is that this court in Cypress AIMX improperly relied on its own decision in US shoe, which did not hold that the export clause was money-manned it. If this court didn't hold the export clause as money-manned it in US shoe, the Supreme Court's affirmance also didn't hold this one. I would back and look at the yellow briefs of a file by the government the first time around. Those were the exact arguments were made that? Exact arguments. And this court considered them, found them faulty, and dismissed them. So why should we do it all over again? Well, the issue is important enough that if this panel thinks it's worthy, we respectfully would request that it's submitted to the full court on the Cypress AIMX issue. This is a discretionary matter for this panel. That's what the local rule indicates. And we've tried to make our best arguments to why we think, with all due respect, that Cypress AIMX was wrong on the site. That's my argument on Cypress AIMX. Does the court have any other questions on the interest issue? Of course. Thank you, Mr. Rottenberg. Mr. Harlow. I just want to touch upon the Cypress issue very briefly, and then go back to the interest, and then finish with the Cypress. I just want to correct an error at government council just made with respect to the United States' shoot, Harper Maintenance case. That was a damages case. The Supreme Court specifically held in the US shoot case that there were no administrative and swastling requirements that had to be fulfilled, because there was no protestable decision that the Custom Service made. Therefore, there was no requirement to file and administrative protest with Customs. Therefore, the exporters could go directly into the Court of International Trade, pursuing to that court's residual jurisdiction, 20 AD USC 1581 I. So therefore, the government's incorrect the premise of why US shoot did not recognize the money damages nature of the exporters. It's just incorrect. I would just like to go back to the interest issue. The government says, well, what we have is an award of damages, but I would ask, what were those damages for? They were four attacks over the payment. That really is the end of the issue, given the breadth of 2411. Now, the government tries to equate the language of 2411 with the language in the tax refund statute, 26 USC 7422. 2411 initially, back in the 20s, instead of her prompting an overpayment, referred to taxes that were only readily assessed or collected. And that is the language that's currently in tax refund provision. But where the government is incorrect, and that's the same error that the Court of Federal claims made in the use of any case that the government referred to, was that when Cyprus held that the cult produced, when I was subject to the requirements of the tax refund statute, it held, so held because Cyprus recognized that the cult produces had two roots to proceed, could have proceeded in tax refund action or damages action. But in no way did Cyprus suggest that proceeding by way of the second root, the damages action negated the existence of an overpayment. And that's the language that's in 2411, it doesn't refer to tax refund statute. So we submit it just because there is a similarity in terms of the overpayment and accomplishing the tax erroneously or illegally assessed, that's simply because the taxpayers had a different root that negated the existence of an overpayment in 2411. Regarding in the IBM, the government correctly showed that there was not necessarily perfect equivalence, but again, IBM recognized that the only reason why you did not have that perfect equivalence was because it was unique for a collusive language in the Harbor Maintenance tax statute. And there is no dispute that there is no similar collusive language. It says don't treat the cult excise tax as a tax, either in a cult excise tax statute or any other statute for that. Let me tell you how my thinking has been going in this case. It seems on the one hand fairly straightforward. The government had your money, they weren't entitled to it. It's been so held and they should pay for the value of that money. But neither side has discussed very much the principle behind the three-year limitation, either that when it's over, it's over. And if, in fact, the claim was not filed until after the three years, that there's something to be said for leaving the Treasury invulnerable to a retroactive claim to this period. That's more a policy consideration, but I think we've all recognized that there seems to be nothing directly in point. How do you balance these policies in your favor, of course? But what's your answer to that? Well, with regard to the public this and the Treasury, in the venture coal decision, this court, in speaking to six-year limitations period applicable to damages actions under the export clause and the co-exise tax scenario, I recognize that the six-year limitations period, albeit longer than the three, still provides the government with an ability to adequately plan financially. So even though it's a longer limitations period, it's not open-ended, and this court has recognized that that is a finite period that the government can do its financial planning with. Now, with regard to the policy, in 1924, this leads regarding the predecessor to the Internal Revenue Code's interest provision. Originally, had an requirement that an administrative claim was a precondition to interest, and that was repealed, and explaining why that was repealed. You don't even need to have an administrative claim necessarily under the tax current interest provision. Congress recognized that what is critical for the entitlement to interest is simply the existence of an overpayment. The simple fact that you pay its tax payer more than you are obligated to pay gives rise to the entitlement to interest, and that's why there's this broad line which is an overpayment. Now, clearly, in this case, it would be for six years rather than three years, but we have a, Congress has an active statute of limitations that covers this action six years. And we have an overpayment, and Congress has recognized that in tax overpayment cases, taxpayers should get interest. And just because it's six years rather than three years, it's still what Congress intended. They've intended that if you're a taxpayer and you can challenge a tax payment, and you're within the whatever applicable limitations period is out there, you should get interest. And that's why the taxpayer should get interest in this case. Thank you. Thank you, Mr. Harlow. Mr. Rothenberg, the case is taken under submission