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The state of substances under ultrahigh pressures and temperatures (UHPHT) now raises a special interest as a matter existing under extreme conditions and as potential new material. Under laboratory conditions only small amounts of micrometer-sized matter are produced at a pressure up to 100 GPa and at room temperature. Simultaneous combination of ultrahigh pressures and temperatures in a lab still requires serious technological effort. Here we describe the composition and structure of the UHPHT vein-like impact glass discovered by us in 2015 on the territory of the Kara astrobleme (Russia) and compare its properties with impact glass from the Ries crater (Germany). A complex of structural and spectroscopic methods presents unusual high pressure marks of structural elements in 8-fold co-ordination that had been described earlier neither in synthetic nor natural glasses. The Kara natural UHPHT glasses being about 70 Ma old have well preserved initial structure, presenting some heterogeneity as a result of partial liquation and crystallization differentiation where an amorphous component is proposed to originate from low level polymerization. Homogeneous parts of the UHPHT glasses can be used to deepened fundamental investigation of a substance under extreme PT conditions and to technological studies for novel material creations.
The state of substances under ultrahigh temperatures and pressures now raises a special interest both from the point of view of fundamental questions of the existence of matter under extreme conditions1,2,3,4,5,6,7, and from the point of view of practical interest with the aim of evaluating them as possible potential new types of materials8,9,10,11.
Under laboratory conditions, at extremely high pressures, only small amounts of matter are produced, which are limited to particles of micrometer size at a pressure up to 100 GPa, where the synthesis is carried out preferably at room temperature1,2,3,4,5. Simultaneous combination of ultrahigh temperatures and pressures can theoretically be accompanied by the formation of specific materials7, which still requires a serious study. Among the objects of natural origin, impact glasses represent interest12,13,14,15,16, and UHPHT melt-type varieties are of particular interest, since their formation is caused by high pressures (35–90 GPa, up to hundreds of GPa) with fast subsynchronous high-temperature impact (up to 3000 °C and higher)17,18,19. Within the considered problem, the advantage of natural impact glasses is also their much larger volume and preservation of their structure over millions of years.
During our studies of diamond-bearing impactites of the 70 Ma old Kara astrobleme (Russia), we for the first time discovered high pressure post-impact liquation glasses with coesite20, which may be interesting for deepened research of their phase state and evaluation of physical properties.
In the context of a large interest in high-pressure glasses as novel promising materials and with regard to strongly limited experimentally produced matter we suggest that the recent find of natural vein-like UHPHT glasses at the Kara astrobleme20 could be pioneering. The glasses, which were formed under extreme PT conditions as essentially macroscopic bodies, can be perspective as possible UHPHT materials and/or valuable substance for fundamental study of matter under extreme conditions. With a complex of spectroscopic methods, we examined the natural UHPHT impact glasses to understand specifics of their composition, structure and character of UHPHT memory through 70 Ma age and level of post impact alteration. For the latter we compare the Kara UHPHT glasses characteristics with substantially younger diamond-bearing glasses from the about 15 Ma old Ries impact crater (Germany).
Two impact craters, Kara (ca. 60 km) and Ust`-Kara (ca. 25 km, predicted), are located in the north-east of the European part of Russia, and they belong to the North-Eastern part of the Pay-Khoy Ridge structure (SM 1). The Kara astrobleme is completely set on land surface, while Ust`-Kara is generally at seawater depth. At present the Kara astrobleme is observed as depression in landscape and well expressed in the gravity and magnetic fields21,22.
It is proposed that these two astroblemes were formed about 70 Ma past21,22,23 by one bolide, which had been destructed before its contact with the target. The geological structure of the Kara astrobleme is presented by a target consisting of Ordovician-Permian units of black shales, sandstones, limestones and other sedimentary rocks with a total thickness more than 5 km, and by impactites – tagamites (massive melt rocks) and suevites21,22. Just this year a complex of vein-like impact melt bodies with coesite has been discovered20 (Figs 1 and 2). A unique feature of the Kara astrobleme are abundant aftercoal diamonds20,24,25 formed after bitumen coal-like carbonaceous matter, widely spread within the sedimentary rock target.
Massive impactite with vein-like ultrahigh pressure melt glasses in contact with black shales of the Kara astrobleme target. (A) Outcrop on the right bank of the Kara river, (B) magnified part (red square in (A)), red lines tracing the vein-like bodies of UHPHT melt glasses. (C–E) thin sections in transparent light, (C,E) parallel polarizers, (D,F) crossed polarizers; (C,D) UHPHT glass (Gl) in suevite (Sv) transporting lithoclasts (Lc). (E,F) crystallized impact melt (CIM) clast, CIM clast within suevite. Photos and microimages were made by T.G.Shumilova.
SEM images of different regions in UHPHT impact glass from a vein-like body in the Kara astrobleme, Kr-12–115, Kara river. (A) aluminosilicate glass with some pyroxene crystallites, (B) coesite-bearing silica glass drop within aluminosilicate glass surrounding matter. Black rounded regions in (B) are pores, produced probably at vacuum probe preparing by recovering of liquid (water-rich) inclusions in glass. GlFsp and GlSiO2 – feldspar and quartz melting glasses, Coe – coesite, Px – pyroxene, Py – pyrite.
For the study we collected samples from natural outcrops at banks of the rivers: Kara (suevite, melt rock, vein-like UHPHT glass), Anaroga (clast-poor melt rock) and Sopchau (suevite) at the southern part of the Kara astrobleme close to the outer rim of the impact structure (SM 1).
The about 15 Ma old 26 km-diameter Ries crater in Bavaria (Germany) (also named Nördlinger Ries or Ries Basin) is one of the most studied impact craters on the Earth26, which is accepted as a classic middle-size impact structure in a mixed, sedimentary-crystalline target. The geology of the crater and impact glasses have been described elsewhere26,27,28,29,30. In this work we used suevites sampled in the Altenbürg and disused Polsingen quarries.
The solidified impact melts of the Kara astrobleme and the Ries crater are in various degree crystallized melts (Fig. 2, SM 2, 3) represented by massive bodies of tagamites; lenses, bombs and ashes in suevites, and also by vein-like formations in massive complexes, recently discovered by us.
The analysis of the geochemical specificity of impact glasses (IG) and crystallized impact melts (CIM) of the Kara astrobleme and the Ries crater generally showed aluminosilicate compositions (SM 4), which occupy a wide field, covering the regions from basic to ultra-acid composition and a wide range of contents of alkaline components (Fig. 3, SM 5). Such a diversity of impact glass compositions can be explained first of all by the impact melting process having affected a complex lithological interbedding of heterogeneous sedimentary rocks.
The feldspar ternary diagram of compositions of clastogenic impact glasses from suevites and UHPHT vein-like glasses of the Kara and Ries astroblemes: 1 – Anaroga river; 2 – Kara river; 3 – Sopchau river; 4 – Ries astrobleme, Altenbürg quarry. Points belonging to UHPHT vein-like glasses from the Kara river are encircled in green.
X-ray diffraction of the impact glasses material from the Kara astrobleme shows an amorphous component of quartz-feldspar glass (Fig. 4). The X-ray patterns show reflexes indicating the presence of feldspar, variously disordered due to the degree of crystallization of the impact melt, as well as of quartz. A weak and strongly broadened reflex corresponds to interplanar spacing 1.4 nm of clay minerals, while a small narrow reflex, corresponding to 0.309 nm be referred to the coesite lattice planes 040.
Diffraction patterns of solidified impact melts with different level of crystallinity. Fls – feldspar, Qtz – quarts, Coe – coesite, Clc – calcite, Anc – analcim, Mgt – magnetite, Mc – mica, Chl – chlorite, Smt – smectite.
The diffraction patterns of the glasses from the Ries crater (Fig. 4) are characterized by a similar amorphous halo reflecting the presence of a significant fraction of an amorphous component, and they also have reflexes of feldspar, quartz and weak broadened reflections 0.253 and 0.171 nm, which possibly refer to the reflections from the magnetite lattice planes 311 and 422 (SM 6).
Raman spectroscopy of the Kara impact glasses was carried out to identify in detail the components of solidified impact melts from UHPHT vein-like bodies from the Kara astrobleme and the impact glasses of the Altenburg suevites (Ries crater) for comparison. The diagnostics was performed in locally homogeneous areas, where the analysis points were focused on optically visible crystallites and amorphous regions. In both cases the impact glasses proved to be relatively inhomogeneous, characterized by different amounts of microcrystallites of pyroxene and coesite (for the Kara astrobleme) and magnetite (for both astroblemes) (Fig. 5, SM 7, 8). UHPHT impact glasses of the Kara astrobleme are also characterized by the presence of a carbon matter in the graphite-like (glass-like) state or in the state of amorphous carbon - sputtered a-C carbon31. At that in a number of cases we determined the co-occurrence of UHPHT silica glass, coesite and carbon matter in a confined volume of only about 1 μm3 (Fig. 5, spectrum KR-115-p19, SM 7, 8).
Raman spectra of impact glasses from the Kara astrobleme (KR) and the Ries crater (R). The color marked fields correspond to spectral ranges of glass, carbon and water. Color marked fields – regions of glass (Glass), carbon substance (CS) and H2O bands.
Feldspar glasses (Fig. 5, spectrum KR-117-p6, KR-118a-p10, SM 7, 8) are characterized by different position and structure of the general glass band pointing to variety in polymerization level toward to very small structural elements and their heterogenity. In some cases the maximum band position can be downshifted up to 80 cm−1 compare to glass produced at the ambient pressure.
According to the obtained spectra, the UHPHT impact glasses of the Kara astrobleme are characterized by a wide general band, often asymmetric with a broad non-structured or structured shoulder toward a red shift in the spectrum. The general structural band of the impact silica glasses has a full width at half maximum (FWHM) of about 200 cm−1 and corresponds to δ(Si-O-Si) bonds of the polymerized structure with a maximum position at 416 cm−1, which is substantially shifted from the usual position32 at 440 cm−1. Unlike glasses, produced at normal pressure, the Raman spectra of UHPHT silica impact glasses are also characterized by the absence of D1 and D2 bands (490 and 603 cm−1 respectively) that refer to the three- and four-membered rings of SiO4 tetrahedra in silica glass32. These features probably characterize the substantially smaller sizes of the structured regions as a result of the lower degree of polymerization caused by a rapid cooling of UHPHT impact melt.
The feldspar glasses are characterized by differently positioned general Raman bands with similar FWHM to low pressure glasses (about 250–300 cm−1). Sometimes the UHPHT feldspar glasses have a complicated general band consisting of several sub-bands with a single FWHM about 100 cm−1 in total getting up to 400–500 cm−1 (Fig. 5, SM 5, spectrum KR12-118-p10).
The presence of a glass-like carbon matter within the UPH silica glasses is determined by the presence of the bands D = 1347 cm−1 and G = 1606 cm−1, as well as by a broad band of the second order - 2937 cm−1. Sputtered a-C carbon (Fig. 5, spectrum KR12–118-p10, SM 5) is diagnosed according to31 by broad bands of 1424, 1608, 2912 cm−1, corresponding respectively to D, G and second order bands.
The presence of a large amount of water with a different structural state in glass is noteworthy for UHPHT impact glasses from the Kara astrobleme. The water is predominant in the molecular (absorbed) form, but can partly be chemically bonded to structural radicals in the glass (Fig. 5, spectrum Kr-2-15-p4, SM 7, 8). The Raman spectroscopy allowed us to estimate to some extent the relative water content in UHPHT impact glasses according to the ratio of the integrated intensities of the structural band of the glass-forming component and water. This ratio in the studied material ranges from 0 to 4.5, which indicates a significant inhomogeneity of the fluid in the solidified impact melts. According to experimental data33, the water content in UHPHT glasses can make several percent, which conforms with our previous studies using gas chromatography and thermogravimetric analysis20.
The main features of the FTIR spectra of the samples from the Kara crater and the Ries relate to vibrational modes of framework aluminosilicate melt glasses (Fig. 6). The most intense IR absorption bands are due to the stretching asymmetric (1000–1200 cm−1) and bending (∼470 cm−1) vibrations of the bridge oxygen of the glass Si-O-Si bonds. In addition a weak broad band at ∼800 cm−1 refers to the symmetric stretching vibration of SiO4 units of this matrix. Against the background of the last band, very weak traces of the characteristic doublet (779, 798 cm−1) of crystalline quartz are noticeable. In the spectra of all glass samples, the high-frequency shoulder of the 470 cm−1 band is complicated by weak bands in the region of 540–640 cm−1 that relate to the bending vibration O-Si (Al) -O and O-Si-O bands in the plagioclase lattice. The presence of weak bands at 1430 and 880 cm−1 in the FTIR spectra indicates an insignificant amount of carbonate and pyroxene in the glass samples.
FTIR absorption spectra of impact glasses and standard samples: Fls – plagioclase (labrador An50–70), Gl – aluminosilicate glass, Qtz – quartz, Aug – pyroxene (augite), Clc– calcite.
The obtained Mössbauer spectra of the impact glasses of both astroblemes contain only paramagnetic doublets (Fig. 7). A sextet structure from magnetic phases is not detected against noise background, although X-ray phase analysis and Raman spectroscopy revealed traces of magnetite in the sample of the glass from the Ries crater (Fig. 4). Analogous spectra were observed in basaltic and meteorite glasses, as well as in tektites34,35,36,37,38. The main feature of the obtained spectra is an asymmetric doublet with quadrupole splitting (QS) of about 2 mm/s and isomer shift (IS) of 1 mm/s, typical for Fe2+ ions in 4–6 fold oxygen polyhedron sites. The high velocity peak is slightly wider and less intense than the low velocity peak.
Mössbauer spectra of the impact glasses of the Ries (A) and Kara (B) craters. Indicated components are the results of the best fits. Residual spectra are shown below. Mössbauer parameters of the best fits components, where IS (mm/s), QS (mm/s), Г (mm/s), A (%) – isomer shift, quadrupole splitting, half-width of doublet peaks, relative area of the doublet. Fe3+/ΣFe = ΣAFe3+/(ΣAFe2+. + k∙ΣAFe3+), where k is the ratio of probabilities of Mössbauer transition of octahedral complexes Fe3+ and Fe2+, k is taken equal to 1.232,33.
As shown by the simulation, the spectra of the Ries crater glass are satisfactorily approximated by a pair of Fe2+ doublets (D1, D2) with different values of IS, QS and weak broadened Fe3+ doublet (D3). In similar spectra of glass from the Kara crater against the background of the low velocity peak of Fe2+ doublets (D1, D2), a broad component with a typically for Fe3+ ions small quadrupole splitting is clearly observed. It is a superposition of at least two Fe3+ doublets (D3, D4) with different QS values. Besides these broadened doublets related to the glass-like matrix, an additional doublet with narrow peaks (D′), sharpening the main doublets of Fe2+, is observed in the spectrum of the glass from the Ries crater. And in the spectrum of the glass from the Kara crater there is a high velocity peak at ∼3 mm/s (D″). The result of decomposition of the spectra in this model and parameters of doublets, obtained in the fitting, are shown in the Fig. 7.
The obtained spectra of glasses in the range of the polarizing magnetic field 0–0.7 T are shown in Fig. 8. They contain a wide band with g = 2.2–2.3 (line widths at extremum points ΔBpp = 210 mT), on which narrow lines with g-factors 4.3 and 2.02 (ΔBpp ∼ 8 and 20 mT, respectively) are superimposed, and also a low-intense sextet of Mn2+ ions in the lattice of calcite impurities. The ESR spectrum of the Ries crater glass is dominated by narrow lines 4.3 and 2.02 contrasting with a broad band 2.2–2.3 in the Kara crater glass. With a ratio of 10:7 the integral intensity of a signal 4.3 (I∙ΔBpp2, where I – peak intensity, ΔBpp - width at extremum points) in the spectra of the glasses from the Ries and Kara craters does not differ significantly. In both glasses the wide band is weakly anisotropic, since the shape of its low-field part slightly changes when the tube with the sample rotates in the resonator. Lines 4.3 and 2.02 are isotropic. When the sample is grinded, the anisotropy of the broad band decreases. This signal can be attributed to Fe3+ ions in ferrous mineral inclusions (pyroxenes) in glass or clusters of iron ions in the glass framework.
ESR spectra of impact glasses from the Kara astrobleme (upper spectrum) and Ries crater (bottom spectrum): A – the full range spectra; B – magnified part region of g = 2.00. Power of the microwave field is 35 and 7 mW for A and B). The spectra of samples are reduced to the same registration conditions.
A narrow signal of free radicals with g = 2.00 is also present in the spectra of the Kara samples, the detailed structure of which is shown in the Fig. 8B. The free radical line is formed by a singlet with g = 2.0025–2.0028 (ΔBpp ∼ 0.3–0.5 mT) and a quartet of approximately equidistant lines with different intensities and widths. The singlet line refers to carbon radicals (•C) in the carbon matter. The quartet is characterized by a medium g-factor 2.0035 and a hyperfine splitting 2.44 mT. Structure-analogous signals are often observed in the EPR powder spectra of alkali feldspars and silica with impurities of organic matter. In feldspar spectra, this signal is usually attributed to the ammonia radical39 NH3+, and in the spectra of silica to the methyl radical40∙CH3. The value of g-factor and hyperfine splitting of the radicals in the Kara glass spectrum allows attributing them to the ∙NH3+ radical41.
The character of the geochemical specificity of the studied impact glasses, determined by overlapping with the most part of volcanic rock fields on the TAS diagram (SM 5), as well as a significant coverage of “forbidden field” for feldspars (Fig. 3) indicates a significant geochemical difference between the impact glasses and CIM glasses of the Kara astrobleme and glasses of volcanic origin42,43,44,45, characterized by a more homogeneous composition for individual volcanic structures and batch eruptions.
During structural studies we established that the massive bodies of melt impactites, as well as numerous inclusions of bombs, lens-like bodies, and ash material in suevites, are largely represented by substantially crystallized impact melts (Fig. 2A). Therefore, in the context of the study, the embedded real vein-like glass bodies including UHPHT glass with a significant share of coesite are the most interesting features for further detailed study.
The water found by Raman spectroscopy in the impact glass could greatly affect impact melt solidification temperature, lowering it significantly, thereby intensively decreasing the viscosity of the impact melt and, hence, substantially increasing its mobility. Besides, the presence of water can also affect the preservation of impact diamonds. It should also be noted that the water inclusions finding within the UHPHT impact glasses support the hypothesis of the Kara impactites formation at aquagenic conditions21. The studied samples of impact glass from the Ries crater generally do not contain water, and the analyzed optically homogeneous glass regions are characterized by almost complete absence of a crystalline component. The position and structure of the general Raman bands are close to ordinary low-pressure aluminosilicate glasses (Fig. 5, spectrum R13-5-1-p3).
Comparing the obtained Raman spectra of impact glasses, it should be noted that unlike the glasses from the Ries crater, the Kara vein-like UHPHT impact glasses are characterized by a significantly greater heterogeneity with respect to the degree of polymerization, which is significantly lower compared to conventional glasses32. This heterogeneity of the UHPHT aluminosilicate glass matrix is attributed to drops of pure silica glasses with coesite (Fig. 2B) and carboniferous matter (Fig. 5, spectrum KR12-115-p19).
The FTIR data of bulk specimens do not allow revealing the specific atomic-level structure of the UHPHT impact glasses, including its fine structure. For a more informative analysis local methods of IR spectroscopy with reference to various homogeneous parts of the vein-like type impact glass are required.
From local detailed Raman spectroscopy it is evident that the crystalline quartz and feldspar X-ray reflections and characteristic IR absorption bands rather originate from a certain quantity of relict quartz crystal-clasts and lithoclasts of polymictic sandstones from the target rocks. Raman studies at microlevel do not reveal any newly formed inclusions of quartz and feldspars directly in the UHPHT impact glasses.
The presence of iron in UHPHT impact glasses allows studying some fine features of the glasses structure under the study, since it significantly expands the possibilities of applying sensitive methods, in particular Mössbauer spectroscopy and electron spin resonance. Wide asymmetric peaks from iron sites in the glass and relatively narrow peaks from iron sites of included crystalline phases are characteristic of Mössbauer spectra.
In the Mössbauer spectra of glasses from Kara and Ries craters (Fig. 7), the most intense doublet D1 with nearly equally large widths (0.5–0.6 mm/s) and the contribution to the total area of the spectral contour is characterized by IS, characteristic of 6-fold oxygen polyhedra with Fe2+, that is, the octahedral type of sites in the aluminosilicate glass46,47,48,49. The QS parameter in the glass from the Kara crater is thus significantly higher than in the glass from the Ries crater. Taking into account the dependence of QS on the degree of distortion of octahedral polyhedra48, it can be concluded that the Fe2+ octahedral sites in the glass from the Kara crater is characterized by relatively low distortion. The second doublet Fe2+ (D2) has a smaller QS value (1.8–1.9 mm/s) and a much smaller isomer shift (0.9–1.0 mm/s). A decrease of IS parameter indicates a decrease of the coordination number of oxygen polyhedron Fe2+ to 4, that corresponds to the tetrahedral type of the position. For the glass from the Ries crater, the representativeness of the Fe2+ tetrahedral sites is three times higher than in the glass from the Kara crater.
The additional low-intense doublet D′ Fe2+ in the spectrum of the glass from the Ries crater has a small width of peaks, which is a characteristic of a crystalline phase, and possibly relates to one of the Fe2+ octahedral sites of the pyroxene lattice49. In the spectrum of the glass from the Kara crater, the doublet D″ with a relatively small peak width has high values of IS and QS (1.35 and 3.5 mm/s). Note that the doublets with the IS and QS large values in our data were observed earlier neither in synthetic nor natural aluminosilicate glasses nor in impact meteorite and tektites glasses34,35,36,37,38. Similar values of these parameters were observed for Fe2+ ions in 8-fold sites of garnets48,49, which lack an independent confirmation among the crystalline inclusions within the Kara glass. Perhaps 8-fold sites of Fe2+ in the Kara UHPHT glass directly evolved at the glass network formation under UHPHT conditions.
Isomer shifts of Fe3+ doublets (0.35–0.38 mm/s) correspond to octahedral sites of iron within different silica glass and mineral substances46,49. A doublet D3 with the same values of IS, QS also presents in the Kara sample spectrum, but it is supplemented by a strongly broadened doublet D4 with a large quadrupole splitting (1.14 mm/s). The areas of the spectral contours of D3, D4 doublets are approximately equal (Fig. 7C). In the case of Fe3+ ions, the rising of the QS value indicates increased distortion of octahedral sites for the D4 doublet. For Ries crater glass spectra only one low-intense doublet D3 with a large peak width and QS ∼ 0.7 mm/s is determined. It is known that the Fe3+ doublets can be explained by iron both in aluminosilicate glass framework and mineral inclusions, for example, pyroxene. In contrast with the glass from the Ries crater, pyroxene a Fe2+ doublet in octahedral sites was not detected in the spectrum of the glass from the Kara crater. For the latter the Mössbauer data show the degree of iron oxidation (Fe3+/ΣFe in Fig. 7C) 3 times higher than in the Ries impact glass. It is possible that Fe-ions in pyroxene of the Kara crater glass were oxidized to Fe3+ state.
The ESR method detects only the signals from Fe3+ ions in iron-containing glass matrix at room temperature. The lines of bivalent iron, due to a very strong spin-phonon interaction, were resolved in EPR spectra only for the specimens cooled to liquid helium temperature. The isotropic lines with g = 4.3 and 2.02 are the characteristics of ESR spectra of various glasses with an impurity of isolated Fe3+ ions, including aluminosilicate ones50,51,52,53. It is considered that these signals are associated with two types of Fe3+ ions isolated in the glass framework: (1) g = 4.3 − ions in purely rhombic strong crystal field, E/D = 1/3, D >> hν (D, E − parameters of axial and rhombic component of crystalline fields, hν ∼ 10 GHz); (2) g = 2.0 - ions in a strong axial field E/D = 0). Fe3+ ions in the rhombic field relate to strongly rhombic distorted tetrahedral positions and iron ions in the axial field (g = 2.0) − to axially distorted octahedral positions. In the Mössbauer spectra (Fig. 7) the doublet of the tetrahedral positions of ferric iron (IS = 0.2–0.32 mm/s) may have been masked by the intense components of the other iron positions.
The unusual feature of the UHPHT glass from the Kara crater is the tiny presence of carbon and ammonia radicals (NH3+) described in the ESR data (Fig. 8B). In mineral matrixes, such as K-feldspars, the ammonia radicals are formed usually from NH4+ cations under ionizing radiation being stable below 200 °C39,40,41. Precursors (NH4+) of the analyzed ammonia radicals in the Kara crater glasses perhaps were formed by the interaction of nitrogen oxides with organic matter during heating of the target rocks. Following the high temperature impact conditions the carbon radicals were formed during thermal carbonization of the organic matter. As for the paramagnetic NH3+ radicals, they could have originated under natural radiation after cooling of the vein-like glasses.
Our studies show that the UHPHT glasses generally consist of an amorphous matter of feldspar composition. Compared to the clastic glasses in suevites, the compositions of the vein-like glasses are localized within a small region in the chemical diagrams having quite stable anorthoclase content and contain small drops of coesite-containing silica glass. A complex of structural and spectroscopic methods presents unusual high pressure marks of structural elements in 8-fold co-ordination that had been described earlier neither in synthetic nor natural glasses.
This comprehensive and complex study for the first time resulted in a rather detailed characterization of the impact glasses of the Kara astrobleme, including a low degree of polymerization of silicate framework on the basis of Raman spectroscopy data. By complex spectroscopic and microscopic data we also determined a significant structure and composition heterogeneity of the UHPHT glasses probably connected with fast partial liquation and crystallization differentiation. In spite of the long post-impact period of about 70 Ma, this type of glasses preserve mostly the initial structure without essential altering over time and under hydrothermal processes. Thus, the Kara UHPHT glasses can be used to deeper fundamental studies by local and high resolution methods for understanding of a substance state under extreme PT conditions.
For the study we selected monomineral fractions of impact glasses by a binocular from impactites of Kara astrobleme and Ries crater, sampled during fieldwork in 2013–2017. The analysis of UHPHT glasses of the Kara astrobleme was performed in comparison with glasses from the Ries crater. The analytical works were carried out by the equipment of Center for Collective Usage “Geonauka” of Institute of Geology Komi SC UB RAS.
The preliminary optical observations were performed using POLAM R-312 polarization microscope (LOMO, Russia) with and without an analyzer.
The elemental composition of the glasses was analyzed by microprobe analysis combined with scanning electron microscopy20,45,54,55, which is common today and most informative to study natural inhomogeneous systems, including impactites, where the detrital component introduces significant distortions during the study by chemical methods. We used a scanning electron microscope TESCAN VEGA3 (Czech Republic) with Oxford instruments X-Max energy dispersive device, analyst S.S. Shevchuk.
For a high-quality assessment of the phase mineral composition of the impact glasses in volume we used X-ray phase analysis (XRD) with a Shimadzu XRD-6000 diffractometer. The conditions of the survey – CuKα, 30 mА, 30 kV, Ni-filter, scanning step 2θ 0.05°, 1 deg/min. We used pounded specimens placed on a flat aluminum substrate. The local analysis of the structure of the impact glasses and the phase diagnostics of its inclusions were performed using a high-resolution Raman spectrometer LabRam HR 800 (Horiba Jobin Yvon). The conditions for recording the spectra were as follows: monochromator grating - 600 g/mm, confocal hole - 300 μm, slit - 100 μm, exposure time 10 sec, number of signal accumulation cycles - 3, power of an excitation Ar + laser (488 nm) 1.2 mW. The size of analyzed regions of the samples was 2.5 μm2. The spectra were recorded at room temperature.
To analyze fine features of the structure of impact glasses we used infrared spectroscopy. Infrared spectra were obtained by a FTIR spectrometer Lumex FT-02 in the range 400–4000 cm−1 at 256 scans and with an instrumental resolution 2 cm−1. The specimens were prepared as pressed pellets of 800 mg KBr and 1.4–1.7 mg of a powder specimen.
Electron spin resonance (ESR) spectra were obtained by a radiospectrometer SE/X-2547 (“RadioPAN”, Poland) in X-frequency range with 100 kHz HF modulation at room temperature of the samples. We used RX102 rectangular resonator with TE102 mode. g-Factors were calibrated according to the standard Li0:LiF (g0 = 2.00229). The samples weighed from 30 to 60 mg and were rubbed in a jasper mortar to the state of “powder”. The recorded spectra were reduced to the same value of the frequency of SHF quantum, amplification and sample weight. In some cases, the averaging of the spectrum for 3–5 scans was performed to reduce noise.
The Mössbauer 57Fe spectra were recorded on a spectrometer MS-1104Em in the mode of a thin absorber in the range of −11 to +11 and −4 to +4 mm/s at room temperature of the preparation. Pounded samples (10–20 mg) were used for spectra accumulation. The accumulation time of spectra was from 100 to 200 hours. The isomer shift was determined relatively to α-Fe. When processing the spectra, Univem standard software of the spectrometer was used.
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Shishkin, M. A. et al. State Geological Map. Scale 1:1000000 (3rd editing). South-Karskaya series. R-41 – Amderma. Report. Saint-Petersburg, VSEGEI, 383 p. (in Russian) (2012).
Trieloff, M., Deutsch, A. & Jessberger, E. K. The age of the Kara impact structure, Russia. Meteoritics & Planetary Science. 33, 361–372 (1998).
Yezerskiy, V. A. High pressure polymorphs produced by the shock transformation of coals. International Geology Review. 28(2), 221–228, https://doi.org/10.1080/00206818609466264 (1986).
Shumilova, T. G., Isaenko, S. I., Ulyashev, V. V., Kazakov, V. A. & Makeev, B. A. After-coal diamonds: an enigmatic type of impact diamonds/European Journal of Mineralogy. https://doi.org/10.1127/ejm/2018/0030-2715 (2018).
Pohl, J., Stöffler, D., Gall, H., Ernstson, K. The Ries impact crater. Impact andExplosion Cratering (Ed. by Roddy, D. J. Pepin, R. O. and Merrill, R. B.), Pergamon Press, New York. 343–404 (1977).
Stöffler, D. et al. Ries crater and suevite revisited — Observations and modeling Part I: Observations. Meteoritics & Planetary Science. 48, 515–589 (2013).
Stöffler, D. Research drilling Nerdlingen 1973: Polymict breccias, crater basement, and cratering model of the Ries impact structure. Geologica Bavarica. 75, 443–458 (1977).
Osinski, G. R. Impact glasses in fallout suevites from the Ries impact structure, Germany: An analytical SEM study. Meteoritics & Planetary Science. 38(Nr 11), 1641–1667 (2003).
Osinski, G. R. Impact melt rocks from the Ries structure, Germany: an origin as impact melt flows? Earth and Planetary Science Letters. 226, 529–543 (2004).
Ferrari, A. C. & Robertson, J. Raman spectroscopy of amorphous, nanostructured, diamond-like carbon, and nanodiamond. Phil. Trans. R. Soc. Lond. A. 362, 2477–2512 (2004).
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Qiang, S., Hongsen, X., Haifei, Z., Jie, G. & Dongye, D. Experimental studies of interaction between water and albite melts. Science in China (Series D). 45(No. 11), 999–1007 (2002).
Dunlap, R. A. An investigation of Fe oxidation states and site distributions in a Tibetan tektite. Hyperfine Interactions. 110, 217–225 (1997).
Rossano, S. et al. 57Fe Mössbauer spectroscopy of tektites. Phys. Chem. Minerals. 26, 530–538 (1999).
Lebedeva, S. M., Eremyashev, V. E. & Bykov, V. N. Investigation of natural basalt glasses by the Mössbauer spectroscopy method. Electronic scientific information journal “Bulletin of the Department of Earth Sciences of RAS”. № 1(21), (in Russian) (2003).
Abdu, Y. A. et al. Mössbauer study of glasses in meteorites: the D’Orbigny angrite and Cachari eucrite. Hyperfine Interactions. 166, 543–547 (2005).
Fern, G. R., Mather, T. A. & Pyl, D. M. Investigation of near-source basaltic glasses using 57Fe Mössbauer spectroscopy. Hyperfine Interactions. 166, 705–708 (2005).
Matyash, I. V., Bagmut, N. N., Litovchenko, A. S. & Proshko, V. Y. Electron paramagnetic resonance study of new paramagnetrc centers in microcline-perthites from pegmatites. . Physics and Chemistry of Minerals. 8, 149–152 (1982).
Ikeya, M. New applications of electron spin resonance: dating, dosimetry and microscopy/copy ed. by Zimmerman, M.R. & Whitehead, N. Singapore; River Edge: World Scientific, 500 p. (1993).
Sasaoka, H., Yamanka, C. & Ikeya, M. Is the quartet due to∙CH3 and C2H5 or NH3 + in alkali feldspars? Appl. Radiat. Isol. 47(No. 11/12), 1415–1417 (1996).
Albert, P. J. Volcanic glass geochemistry of Italian proximal deposits linked to distal archives in the central Mediterranean region. PhD thesis, University of London (August 2012).
Fujioka, K., Furuta, T. & Arai, F. Petrography and geochemistry of volcanic glass: Leg 57, Deep Sea Drilling Project. In: Scientific Party, Initial Reports of the Deep Sea Drilling Project, 56/57 (eds), Initial Reports of the Deep Sea Drilling Project (U.S. Govt. Printing Office), 56–57, 1049–1066 (1980).
Popov, V. K., Sakhno, V. G., Kuzmin, Y. V., Glascock, M. D. & Choi, B. K. Geochemistry of Volcanic Glasses from the Paektusan Volcano. Doklady Earth Sciences. 403(No. 5), 803–807 (2005).
Nichols, A. R. L., Beier, C., Brandl, P. A., Buchs, D. M. & Krumm, S. H. Geochemistry of volcanic glasses from the Louisville Seamount Trail (IODP Expedition 330): Implications for eruption environments and mantle melting Geochemistry, Geophysics, Geosystems. 1–21; https://doi.org/10.1002/2013GC005086 (2014).
Dyar, M. D. A review of Mössbauer data on inorganic glasses: the effects of composition on iron valency and coordination. American Mineralogist. 70, 304–316 (1985).
Menil, F. Systematic trends of the 57Fe Mössbauer isomer Shifts in (FeOn) and (FeFn) polyhedral. Evidance of a new correlation between the isomer shift and the inductive effect of the competing bond T − X (→Fe) (where X is O or F and T any element with a formal positive charge). J. Phys. Solids. 46(No. 7), 763–789 (1985).
Burns, R. G. Mineral Mössbauer spectroscopy: Correlations between chemical shift and quadrupole spfitting parameters. Hyperfine Interactions. 91, 739–745 (1994).
Vandenberghe, R. E. & De Grave E. Application of Mössbauer Spectroscopy in Earth Sciences. Mössbauer Spectroscopy. Tutorial Book (Ed. by Yutaka Yoshida and Guido Langouche). Springer-Verlag Berlin Heidelberg, 91–186 (2013).
Brodbeck, C. M. Investigation of g-value correlations associated with the g = 4.3 ESR signal of Fe3+ in glass. J. of Non-Crystalline Solids. 40, 305–313 (1980).
Klyava, Y. G. EPR spectroscopy of disordered solid bodies. Riga: Zinatie, 320 p. (in Russian) (1988).
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Dunaeva, E. S., Ugolkova, E. A., Efimov, N. N., Minin, V. V. & Novotortsev, V. M. ESR spectroscopy of FeIII ions in sodium silicate glass. Russian Chemical Bulletin. 63(No. 1), 60–63 (2014).
Raschke, U., Schmitt, R. T. & Reimold, W.U. Petrography and geochemistry of impactites and volcanic bedrock in the ICDP drill core D1c from lake El’gyytgyn, NE Russia. Meteoritics & Planetary Science. 48, No. 7, 1251–1286; https://doi.org/10.1111/maps.12087 (2013).
Rowe, M. C., Ellios, B. S. & Lindeberg, A. Quantifying crystallization and devitrification of rhyolites by means of X-ray diffraction and electron microprobe analysis. American Mineralogist 97, 1685–1699, https://doi.org/10.2138/am.2012.4006 (2012).
The authors kindly thank M.F. Samotolkova and S.S.Shevchuk for help in analytical works with IR spectroscopy and microprobe analysis, correspondently. The study has been financially supported by the Russian Scientific Foundation, project # 17-17-01080.
T.Sh. introduced the original goal, organized and led the field work of the Russian team, prepared specimens for analytical work, participated in analytical studies, provided the data analysis and wrote the paper. V.L. provided EPR spectroscopy, analyzed Mössbauer and IR spectroscopy, interpretation of X-ray diffraction data, wrote the paper. S.I. took part in field studies, provided detailed high resolution Raman studies, conducted the analysis of all Raman data, and contributed to writing the paper. N.K. took part in field studies, in microprobe studies and data interpretation, B.M. took part in field studies, provided X-ray diffraction. A.L. realized Mössbauer spectroscopy. A.Z. took part in optical and Raman spectroscopy studies. K.E. organized sampling at the Ries impact structure and took part at the paper editing.
Correspondence to T. G. Shumilova.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


Argued Oct. 20, 21, 1954.
Petitioners, husband and wife, stand convicted under § 145 of the Internal Revenue Code1 of an attempt to evade and defeat their income taxes for the year 1948. The prosecution was based on the net worth method of proof, also in issue in three companion cases2 and a number of other decisions here from the Courts of Appeals of nine circuits. During the past two decades this Court has been asked to review an increasing number of criminal cases in which proof of tax evasion rested on this theory. We have denied certiorari because the cases involved only questions of evidence and, in isolation, presented no important questions of law. In 1943 the Court did have occasion to pass upon an application of the net worth theory where the taxpayer had no records. United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546.
The Government's opening net worth computation shows defendants with a net worth of $19,152.59 at the beginning of the indictment period. Shortly thereafter, defendants purchased a hotel, bar and restaurant, and began operating them as the Holland House. Within three years during which they reported $31,265.92 in taxable income, their apparent net worth increased by $113,185.32.3 The Government's evidence indicated that, during 1948, the year for which defendants were convicted, their net worth increased by some $32,000, while the amount of taxable income reported by them totaled less than one-third that sum.
As we have previously noted, this is not the first net worth case to reach this Court. In United States v. Johnson, supra (319 U.S. 503, 63 S.Ct. 1240), the Court affirmed a tax-evasion conviction on evidence showing that the taxpayer's expenditures had exceeded his 'available declared resources.' Since Johnson and his concealed establishments had destroyed the few records they had, the Government was forced to resort to the net worth method of proof. This Court approved on the ground that 'To require more * * * would be tantamount to holding that skilful concealment is an invincible barrier to proof', 319 U.S. at pages 517—518, 63 S.Ct. at page 1240. Petitioners ask that we restrict the Johnson case to situations where the taxpayer has kept no books. They claim that § 41 of the Internal Revenue Code,4 expressly limiting the authority of the Government to deviate from the taxpayer's method of accounting, confines the net worth method to situations where the taxpayer has no books or where his books are inadequate. Despite some support for this view among the lower courts, see United States v. Riganto, D.C., 121 F.Supp. 158, 161, 162; United States v. Williams, 3 Cir., 208 F.2d 437, 437—438; Remmer v. United States, 9 Cir., 205 F.2d 277, 286, judgment vacated on other grounds, 347 U.S. 227, 74 S.Ct. 450, we conclude that this argument must fail. The provision that the 'net income shall be computed * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer', refers to methods such as the cash receipts or the accrual method, which allocate income and expenses between years. United States v. American Can Co., 280 U.S. 412, 419, 50 S.Ct. 177, 179, 74 L.Ed. 518. The net worth technique, as used in this case, is not a method of accounting different from the one employed by defendants. It is not a method of accounting at all, except insofar as it calls upon taxpayers to account for their unexplained income. Petitioners' accounting system was appropriate for their business purposes; and, admittedly, the Government did not detect any specific false entries therein. Nevertheless, if we believe the Government's evidence, as the jury did, we must conclude that the defendants' books were more consistent than truthful, and that many items of income had disappeared before they had even reached the recording stage. Certainly Congress never intended to make § 41 a set of blinders which prevents the Government from looking beyond the self-serving declarations in a taxpayer's books. 'The United States has relied for the collection of its income tax largely upon the taxpayer's own disclosures * * *. This system can function successfully only if those within and near taxable income keep and render true accounts.' Spies v. United States, 317 U.S. 495, 63 S.Ct. 366. To protect the revenue from those who do not 'render true accounts', the Government must be free to use all legal evidence available to it in determining whether the story told by the taxpayer's books accurately reflects his financial history.
We agree with petitioners that an essential condition in cases of this type is the establishment, with reasonable certainty, of an opening net worth, to serve as a starting point from which to calculate future increases in the taxpayer's assets. The importance of accuracy in this figure is immediately apparent, as the correctness of the result depends entirely upon the inclusion in this sum of all assets on hand at the outset. The Government's net worth statement included as assets at the starting point stock costing $29,650 and $2,153.09 in cash.5 The Hollands claim that the Government failed to include in its opening net worth figure an accumulation of $113, 000 in currency and 'hundreds and possibly thousands of shares of stock' which they owned at the beginning of the prosecution period. They asserted that the cash had been accumulated prior to the opening date, $104,000 of it before 1933, and the balance between 1933 and 1945. They had kept the money, they claimed, mostly in $100 bills and at various times in a canvas bag, a suitcase, and a metal box. They had never dipped into it until 1946, when it became the source of the apparent increase in wealth which the Government later found in the form of a home, a ranch, a hotel and other properties. This was the main issue presented to the jury. The Government did not introduce any direct evidence to dispute this claim. Rather it relied on the inference that anyone who had had $104,000 in cash would not have undergone the hardship and privation endured by the Hollands all during the late 20's and throughout the 30's. During this period they lost their cafe business; accumulated $35,000 in debts which were never paid; lost their household furniture because of an unpaid balance of $92.20; suffered a default judgment for $506.66; and were forced to separate for some eight years because it was to their 'economical advantage.' During the latter part of this period, Mrs. Holland was obliged to support herself and their son by working at a motion picture house in Denver while her husband was in Wyoming. The evidence further indicated that improvements to the hotel, and other assets acquired during the prosecution years, were bought in installments and with bills of small denominations, as if out of earnings rather than from an accumulation of $100 bills. The Government also negatived the possibility of petitioners' accumulating such a sum by checking Mr. Holland's income tax returns as far back as 1913, showing that the income declared in previous years was insufficient to enable defendants to save any appreciable amount of money. The jury resolved this question of the existence of a cache of cash against the Hollands, and we believe the verdict was fully supported.
As to the stock, Mr. Holland began dabbling in the stock market in a small way in 1937 and 1938. His purchases appear to have been negligible and on borrowed money. His only reported income from stocks was in his tax returns for 1944 and 1945 when he disclosed dividends of $1,600 and $1,850 respectively. While the record is unclear on this point, it appears that during the period from 1942 to 1945 he pledged considerable stock as collateral for loans. There is no evidence, however, showing what portions of this stock Mr. Holland actually owned at any one time, since he was trading in shares from day to day. And, even if we assume that he owned all the stock, some 4,550 shares, there is evidence that Mr. Holland's stock transactions were usually in 'stock selling for only a few dollars per share.' In this light, the Government's figure of approximately $30,000 is not out of line. In 1946 Holland reported the sale of about $50,000 in stock, but no receipt of dividends; nor were dividends reported in subsequent years. It is reasonable to assume that he sold all of his stock in 1946. In fact, Holland stated to the revenue agents that he had not 'fooled with the stock market' since the beginning of 1946; that he had not owned any stocks for two or three years prior to 1949; that he had saved about $50,000 from 1933 to 1946, and that in 1946 he had $9,000 in cash with the balance of his savings in stocks.6 The Government's evidence, bolstered by the admissions of petitioners, provided convincing proof that they had no stock other than the amount included in the opening net worth statement. By the same token, the petitioners' argument that the Government failed to account for the proceeds of stock sold by them before the starting date must also fail. The Government's evidence fully justified the jury's conclusion that there were no proceeds over and above the amount credited to petitioners.
So overwhelming, indeed, was the Government's proof on the issue of cash on hand that the Government agents did not bother to check petitioners' story that some of the cash represented proceeds from the sales of two cafe § in the 20's; and that in 1933 and additional portion of this $113,000 in currency was obtained by exchanging some $12,000 in gold at a named bank. While sound administration of the criminal law requires that the net worth approach—a powerful method of proving otherwise undetectable offenses—should not be denied the Government, its failure to investigate leads furnished by the taxpayer might result in serious injustice. It is, of course, not for us to prescribe investigative procedures,7 but it is within the province of the courts to pass upon the sufficiency of the evidence to convict. When the Government rests its case solely on the approximations and circumstantial inferences of a net worth computation, the cogency of its proof depends upon its effective negation of reasonable explanations by the taxpayer inconsistent with guilt. Such refutation might fail when the Government does not track down relevant leads furnished by the taxpayer—leads reasonably susceptible of being checked, which, if true, would establish the taxpayer's innocence. When the Government fails to show an investigation into the validity of such leads, the trial judge may consider them as true and the Government's case insufficient to go to the jury. This should aid in forestalling unjust prosecutions, and have the practical advantage of eliminating the dilemma, especially serious in this type of case, of the accused's being forced by the risk of an adverse verdict to come forward to substantiate leads which he had previously furnished the Government. It is a procedure entirely consistent with the position long espoused by the Government, that its duty is not to convict but to see that justice is done.
The Government introduced evidence tending to show that although the business of the hotel apparently increased during the years in question, the reported profits fell to approximately one-quarter of the amount declared by the previous management in a comparable period;8 that the cash register tapes, on which the books were based, were destroyed by the petitioners; and that the books did not reflect the receipt of money later withdrawn from the hotel's cash register for the personal living expenses of the petitioners and for payments made for restaurant supplies. The unrecorded items in this latter category totaled over $12,500 for 1948. Thus there was ample evidence that not all the income from the hotel had been included in its books and records. In fact, the net worth increase claimed by the Government for 1948 could have come entirely from the unreported income of the hotel and still the hotel's total earnings for the year would have been only 73% of the sum reported by the previous owner for the comparable period in 1945.
But petitioners claim the Government failed to adduce adequate proof because it did not negative all the possible nontaxable sources of the alleged net worth increases—gifts, loans, inheritances, etc. We cannot agree. The Government's proof, in our view, carried with it the negations the petitioners urge. Increases in net worth, standing alone, cannot be assumed to be attributable to currently taxable income. But proof of a likely source, from which the jury could reasonably find that the net worth increases sprang, is sufficient. In the Johnson case, where there was no direct evidence of the source of the taxpayer's income, this Court's conclusion that the taxpayer 'had large, unreported income was reinforced by proof * * * that (for certain years his) private expenditures * * * exceeded his available declared resources.' This was sufficient to support 'the finding that he had some unreported income which was properly attributable to his earnings * * *.' United States v. Johnson, 319 U.S. at page 517, 63 S.Ct. at page 1240. There the taxpayer was the owner of an undisclosed business capable of producing taxable income; here the disclosed business of the petitioners was proven to be capable of producing much more income than was reported and in a quantity sufficient to account for the net worth increases. Any other rule would burden the Government with investigating the many possible nontaxable sources of income, each of which is as unlikely as it is difficult to disprove. This is not to say that the Government may disregard explanations of the defendant reasonably susceptible of being checked. But where relevant leads are not forthcoming, the Government is not required to negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant. See Rossi v. United States, 289 U.S. 89, 91—92, 53 S.Ct. 532, 533, 77 L.Ed. 1051.
A final element necessary for conviction is willfulness. The petitioners contend that willfulness 'involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income.' This is a fair statement of the rule. Here, however, there was evidence of a consistent pattern of underreporting large amounts of income, and of the failure on petitioners' part to include all of their income in their books and records. Since, on proper submission, the jury could have found that these acts supported an inference of willfulness, their verdict must stand. Spies v. United States, supra, 317 U.S. at pages 499—500, 63 S.Ct. 368.
Petitioners press upon us, finally, the contention that the instructions of the trial court were so erroneous and misleading as to constitute grounds for reversal. We have carefully reviewed the instructions and cannot agree. But some require comment. The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485—487; Stutz v. United States, 5 Cir., 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 229, 234, certiorari denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002; United States v. Becker, 2 Cir., 62 F.2d 1007, 1010; 1 Wigmore, Evidence (3d ed.), §§ 25—26.
'Q. In other words, to summarize this whole thing: you had a net worth of $157,000 at January 1, 1946, which consisted of $104,000 which you had since December 22, 1933, and the balance of $9,000 in currency, and your investment in securities—or the value of your securities.


For much of the past decade, hospitals and CMS have battled over whether providers may claim, as Medicare reasonable costs, the full amount of provider tax assessments levied upon them by the states in which they operate. In 2011, CMS issued a "clarification" in the Provider Reimbursement Manual, (PRM) stating that while taxes may generally be allowable, providers may treat only the "net tax expense" as a reasonable cost. PRM § 2127.7. Essentially adopting the position that certain Medicare contractors had been asserting, CMS then said that the providers' tax costs must be reduced by payments received from the states and "associated with the assessed tax." Additionally, even predating the PRM change, CMS maintained in litigation that when taxes are placed by a state into a fund, and monies in that fund are used, at least in part, to make state hospital payments (such as Medicaid payments), those state payments operate in essence as "refunds" of the taxes and thus reduce the amounts that are appropriately reimbursable as Medicare costs.
Hospitals have challenged CMS's position but have been largely unsuccessful. The United States Courts of Appeals for the Seventh, Eighth and Sixth Circuits have all ruled in favor of the government. See Abraham Lincoln Mem'l Hosp. v. Sebelius, 698 F.3d 536, 550 (7th Cir. 2012); Kindred Hospitals East, LLC v. Sebelius, 694 F.3d 924 (8th Cir. 2012); Breckinridge Health, Inc. v. Price, 859 F.3d 422 (6th Cir. 2017). Providers, however, continued to hold out hope based on a decision from the United States District Court for the District of Columbia, Dana-Farber Cancer Inst. v. Burwell, 216 F.3d 49 (D.D.C. 2016). In that case, the District Court largely sided with Dana-Farber concluding that, under Medicare's regulations at 42 C.F.R. § 413.98, a refund and an expense have a "temporal and substantive relationship" such that "the amount paid back" must be for a "previous expense" to reduce a "related expense." The District Court concluded that Massachusetts fund payments to Dana-Farber were made to reduce the hospital's costs for providing care to under- and uninsured patients, and not to reduce the expense of the hospital tax.
The Court of Appeals, however, has now reversed the District Court's decision. Dana-Farber Cancer Inst. v. Hargan, Case No. 16-5379 (Dec. 22, 2017) The D.C. Circuit ruled that the question before it was whether the interpretation by the Provider Reimbursement Review Board (PRRB) of the refund regulation was arbitrary and capricious, and it concluded that the interpretation was not. The court determined that the provider tax was imposed to generate revenues for a Massachusetts fund that was then used to make hospital payments, thereby making the tax and payments "inextricably linked." The court further ruled that the PRRB had reasonably focused on the guiding principal of statutory and regulatory language instructing that Medicare reimbursement is permitted only for costs "actually incurred."
The impact of this latest decision is significant. With rulings from four United States Courts of Appeals, including the most recent ruling from the D.C. Circuit, and with no decisions to the contrary, providers that might wish to challenge CMS's Medicare provider tax policy may now be hesitant to do so. Unless the structure of the provider tax program in a particular state is so unlike those programs that have previously been the source of litigation, it seems unlikely that a reviewing court will spend much time reexamining the rationale of the prior rulings. And given the expense and effort involved in further pursuing the issue, providers may decide that their efforts are better spent elsewhere.


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Insofar as the processing of personal data is necessary to fulfil a legal obligation to which our company is subject, the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. c DSGVO serves as the legal basis.
If the processing is necessary to safeguard a legitimate interest of our company or a third party and if the interests, fundamental rights and fundamental freedoms of the data subject do not outweigh the first interest, the Federal Act on Data Protection (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. f DSGVO shall serve as the legal basis for the processing.
The temporary storage of the IP address by the system is necessary to enable delivery of the website to the user's computer. For this purpose, the IP address of the user must remain stored for the duration of the session. The log files contain IP addresses or other data that enable the user to be identified. This could be the case, for example, if the link to the website from which the user accesses the website or the link to the website to which the user switches contains personal data.
The data is also stored in the log files of our system. These data are not stored together with other personal data of the user. The data is stored in log files in order to ensure the functionality of the website. The data is also used to optimise the website and to ensure the security of our information technology systems. An evaluation of the data for marketing purposes does not take place in this context.
The legal basis for the temporary storage of data and log files is the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. f DSGVO.
The data will be deleted as soon as they are no longer necessary to achieve the purpose for which they were collected. Technical server log files are automatically deleted after 365 days.
The legal basis for the processing of personal data using cookies is the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. f DSGVO.
The processing of the personal data from the input mask serves us exclusively for the processing of the establishment of contact. If you contact us by e-mail, this is also the necessary legitimate interest in the processing of the data by our order data processing partner. The other personal data processed during transmission serve to prevent misuse of the contact form and to ensure the security of our information technology systems.
The processing of the personal data from the input mask serves us exclusively for the processing of the establishment of contact. If you contact us by e-mail, this is also the necessary legitimate interest in the processing of the data. The other personal data processed during transmission serve to prevent misuse of the contact form and to ensure the security of our information technology systems.
The legal basis for the processing of the data is the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. a DSGVO if the user has given his consent.
The legal basis for the processing of data transmitted in the course of an e-mail transmission is the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. f DSGVO. If the purpose of the e-mail contact is to conclude a contract, the additional legal basis for the processing is the Federal Data Protection Act (DSG) or, if and to the extent applicable, Art. 6 para. 1 lit. b DSGVO.
The data will be deleted as soon as they are no longer necessary to achieve the purpose for which they were collected. For the personal data from the input mask of the contact form and those sent by e-mail, this is the case when the respective conversation with the user has ended. The conversation is terminated when it can be inferred from the circumstances that the matter in question has been conclusively clarified.
The user has the possibility to revoke his consent to the processing of personal data at any time. If the user contacts us by e-mail (contact form), he can object to the storage of his personal data at any time. In such a case, the conversation cannot be continued and the revocation must be made by telephone.
If personal data is processed by you, you are the "person concerned" within the meaning of the Federal Data Protection Act (DSG) or, if and to the extent applicable, the DSGVO and you have the following rights vis-à-vis us as the person responsible. You can make use of your rights by contacting us stating your request.
Any person affected by the processing of personal data has the right to demand that the data controller restrict the processing if the conditions laid down by the legislator in the Federal Act on Data Protection (DPA) or, if and to the extent applicable, in Art. 18 para. 1 DPA are met.
Any data subject involved in the processing of personal data has the right to obtain personal data concerning him or her which have been provided by the data subject to a controller in a structured, common and machine-readable format. He also has the right to transfer this data to another data controller without being hindered by the data controller to whom the personal data was provided, provided that the processing is based on consent in accordance with the Federal Data Protection Act (DPA) or, if and to the extent applicable, Art. 6 para. 1 letter a DPA Regulation or Art. 9 para. 2 letter a DPA Regulation or on a contract in accordance with Art. 6 para. 1 letter b DPA Regulation and the processing is carried out using automated procedures.
Any person concerned by the processing of personal data has the right to object at any time to the processing of personal data concerning him or her on the basis of the Federal Act on Data Protection (DPA) or, if and to the extent applicable, Article 6(1)(e) or (f) of the DPA for reasons arising from his or her particular situation. This also applies to profiling based on these provisions.
In the event of objection, the company will no longer process the personal data unless we can prove compelling reasons for the processing worthy of protection which outweigh the interests, rights and freedoms of the person concerned, or the processing serves to assert, exercise or defend legal claims.
If the Company processes personal data for the purpose of direct marketing, the data subject has the right to object at any time to the processing of the personal data for the purpose of such advertising. This also applies to profiling insofar as it is connected with such direct advertising. If the data subject objects to the processing for direct marketing purposes, the personal data shall no longer be processed for those purposes.
You have the right to revoke your data protection consent at any time. The revocation of your consent does not affect the lawfulness of the processing carried out on the basis of your consent until you revoke it.
Without prejudice to any other administrative or judicial remedy, you have the right to appeal to a supervisory authority, in particular in the Member State in which you reside, your place of work or the place where the alleged infringement is suspected, if you believe that the processing of your personal data violates the Federal Data Protection Act (DSG) or, if and to the extent applicable, the DSGVO.
On our website, the Google Maps map service is used via an API (programming interface). Provider is Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA ("Google").
To use the functions of Google Maps, it is necessary to store your IP address. This information is usually transferred to a Google server in the USA and stored there. The operator of this site has no further influence on this data transfer.
You can find more information on data protection at Google under the following link: https://www.google.de/intl/de/policies/privacy/.
This page uses so-called web fonts, which are provided by Google, for the uniform display of fonts. When you call up a page, your browser loads the required web fonts into its browser cache to display texts and fonts correctly.
We only use this data in order to answer your message via chat in an optimum manner and in a way that is tailored to you. The processing of your chat request constitutes our legitimate interest within the meaning of Art. 6 para. 1 point f GDPR. You can object to this data processing at any time (see Section 13 Contact).
You are personally responsible for the messages and the content you send to us via the chat function. We recommend that you do not send any sensitive information via the chat function. Only the personal data you send to us voluntarily during the chat will be collected. You are therefore in control of which information you send us. In order to answer your chat queries, we may request additional information from you, such as your e-mail address and telephone number, etc. We will only collect personal data from you which we require to process and answer your query or to provide the services requested.
With regard to the chat function, we work with the tool Zendesk Chat from the company Zendesk Inc., San Francisco, California, USA. The chat data is stored by Zendesk on a server in a Member State of the European Union.

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‘Betting’ – any arrangement under which it is possible to win money, valuable consideration or benefit, by guessing something, including lotteries based on the results of sports matches and contests.
These definitions are intentionally broad and, as a result, they overlap somewhat. From an academic perspective, the legislator’s intention was to distinguish lotteries and betting from prohibited games – the former two are based on a specific arrangement or contract between an offeror and offeree, whereas the latter involves an activity defined by the predetermined rules of a particular game.
While the Penal Law does not use the terms ‘game of chance’ or ‘game of skill’, the statutory definitions (and the subsequent interpretation of them by Israel’s courts), are predicated on the ‘predominance test’ (as captured by the phrase ‘more by chance than by understanding or ability’). In other words, activities in which skill or knowledge outweigh chance or randomness in determining the outcome will be excluded from the scope of ‘prohibited game’ and ‘lottery’ under Israeli law.
Notwithstanding, Israeli courts have added a ‘twist’ to the aforementioned predominance test. In a 2011 ruling, the District Court of Tel Aviv determined that where a particular betting game consists of both skill and chance, the ‘social interest and utility’ of the game in question should also be taken into account before considering its legality.3 In the matter at hand, the court ruled that the hybrid activity was, in fact, a form of prohibited gaming (rejecting an expert opinion stipulating the predominance of skill in determining the outcome of the activity).
Furthermore, in a ruling issued in May 2017 (as yet unpublished) the Tel Aviv Magistrate’s Court ruled that when determining whether a particular game is one of chance or skill, the game must be assessed in relation to an amateur player playing a single hand. This ruling is subject to appeal, and does not itself constitute a binding precedent but it is demonstrative of the restrictive view Israeli courts take towards gambling.
Against that backdrop, and though the matter has not been addressed to date by Israeli courts, it is the author’s view that Israeli courts are likely to consider activities such as ‘fantasy sports’ as a form of prohibited gambling. While Israeli authorities tolerate true competitions of skill played for prizes, an activity with monetary prizes predicated on the outcome of an external sporting event (or multiple events) is likely to be considered by Israeli courts as falling within the definition of betting, an area exclusively reserved under Israeli law to Israel’s sports-betting monopoly.
Binary options, contracts for differences, spread betting and other speculative activities related to financial instruments, currencies, securities and the like, are not considered a form of gambling under Israeli law. These activities are regulated under Securities Law 5728-1968. The Tel Aviv District Court ruled in 2016 that trading in binary options does not constitute a form of prohibited gambling.5 However, the Israeli Securities Authority (the Authority) has prohibited Israeli licensed trading platforms to offer binary options to Israeli retail customers.6 A 2017 amendment to the Securities Law severely restricts the involvement of Israelis in binary options trading (either with Israeli end users or elsewhere). The explanatory notes accompanying the amendment made reference to the Authority’s position regarding the ‘gambling-like’ characteristics of binary options trading.
Israel is notoriously conservative with respect to gambling. An intersection of religious and socialist values has resulted in Israel banning most forms of gambling.
While the laws related to gambling have scarcely changed in recent years, the existing law contains a relatively broad prohibition. The Penal Law prohibits organising ‘lotteries, betting and prohibited games’ (Section 225) and participation in prohibited games (Section 226). Section 225 provides that a person organising or conducting a prohibited game, lottery or betting is liable to a penalty of up to three years’ imprisonment or a fine of up to 452,200 shekels. Section 226 provides that a person playing a prohibited game is liable to a penalty of up to one year’s imprisonment or a fine of up to 29,200 shekels. Oddly, Section 226 does not refer to betting or lotteries. In other words, the sanctions on participation are triggered only by playing a ‘prohibited game’.
Israeli courts have expanded upon the language of the Penal Law, most notably by ruling that online gambling and betting available to Israeli consumers violates Israeli law (despite the fact that the law predates the internet). The Israel Police has taken enforcement action against online gaming (focusing primarily, but not exclusively, on operations with an Israeli nexus). After an Israeli court refused to uphold a police order requiring internet service providers (ISPs) to ban access to foreign online betting sites, members of Israel’s parliament tabled a bill to introduce such measures into the Penal Law (the bill did not, eventually, become law). The Bank of Israel has prohibited the transmission of funds related to gambling by Israeli financial institutions, and the State Comptroller has called on all Israeli authorities to take action to curtail the availability of internet gambling in Israel. In short – Israel’s authorities are actively seeking to uphold the gambling ban, both offline and online.
Various Israeli governments have considered a limited liberalisation of the blanket ban on bricks-and-mortar gambling, by allowing the construction of a small number of casino resorts in Eilat, a resort destination on the Red Sea. No such initiatives have achieved any meaningful traction.
In 2017, the Israeli Minister of Finance revoked the permit granted to the National Lottery to operate a limited number of video lottery terminals (VLTs). This revocation has been judicially challenged by Lottery concessionaires and as at April 2018 the matter remains pending before the High Court of Justice.7 Statements made by the Ministry of Finance suggest that the Ministry further wishes to revoke the permission granted to the Israel Sports Betting Board to conduct horse race wagering. The Ministry of Finance has also announced the establishment of a public committee to review the existing legislation in Israel pertaining to sweepstakes and promotional prize draws, with a view at possibly restricting or re-regulating such activities.
The only forms of legal gambling in Israel (other than a very limited exemption for purely social gambling activities) are the national lottery and a limited sports betting service operated by the state.
a The National Lottery was established in 1951. It offers several weekly draws, scratch cards, a weekly subscription lottery, and various other lotteries and raffles. The operations of the National Lottery are supervised and regulated by the Ministry of Finance.
b The Israel Sports Betting Board (ISBB) was established in 1967 under the Law for the Regularisation of Sports Betting 5727-1967. The ISBB has the exclusive right to organise and regulate sports betting in Israel. It offers betting on football and basketball games, as well as a limited horse race wagering service (the latter activity may be banned by the Ministry of Finance, as noted above).
The regulation of gambling in Israel is entirely on the national level (local authorities have no jurisdiction on gambling-related matters). Notwithstanding, there have been proposals (none of which have progressed) to carve-out Israel’s prime resort location, the city of Eilat, from the general prohibition on terrestrial gambling.
With respect to online gambling, Israeli courts have ruled that Israeli law applies to online gambling conducted by foreign operators, when it is made available to Israeli players. In other words, when a party to the gambling transaction is located in Israel, the entire activity would be viewed as a violation of the prohibition on gambling. Enforcement has focused on operators specifically targeting the Israeli market (i.e., advertising to Israelis, using the Hebrew language, etc.).8 To date, Israeli authorities have never taken enforcement action against foreign operators with no presence in Israel, that have not specifically targeted the Israeli market.
As noted, the police have attempted to order Israeli ISPs to block access to a specific list of online gambling sites, however the blocking orders were appealed by the ISPs and struck down by the Israeli Supreme Court for lack of explicit legal authority.9 A bill that would empower police to issue orders aimed at preventing those in Israel from accessing websites offering online gambling services was presented to Israel’s legislature, but was not passed into law.
Furthermore, in 2010 the Israeli State Comptroller published a comprehensive analysis of the illegal online gambling market in Israel. The report covered a broad spectrum of governmental agencies. The State Comptroller has urged Israeli enforcement authorities to implement the necessary measures to disrupt gambling-related transactions and block access to illegal gambling websites from within Israel.
The primary piece of legislation regulating gambling in Israel (i.e., the prohibition on gambling) is Chapter 12 of the Penal Law. The Penal Law defines the types of activities that constitute gambling and betting, the prohibitions applicable to such activities, and the limited exemptions available under law.
Additionally, the Law for the Regularisation of Sports Betting 5727-1967 governs the activities of the ISBB.
The only forms of regulated gambling in Israel are the National Lottery, regulated by the Ministry of Finance, and the ISBB (which is a self-regulating statutory corporation).
Israeli law does not separately regulate remote and terrestrial gambling. In fact, the law does not specifically refer to remote gambling. The application of the Penal Law to remote gambling was the result of a judicial interpretation of the scope of the law.
Land-based gambling (other than the National Lottery and the national sports betting offering) is illegal under Israeli law.
With the exception of the online betting services offered by the ISBB, online gambling is illegal under Israeli law.
Commercial gambling is illegal in Israel, so this section is not applicable.
Israeli law enforcement agencies have taken action against unlawful gambling operations. The police have raided unlawful gambling houses and venues used for gambling, and have also taken action against individuals and businesses involved in unlawful online gambling. To date, direct enforcement action has focused primarily on gambling operations conducted by organised crime or from within Israel itself.
Gambling offences are considered source offences under the Prevention of Money Laundering Law 5760-2000. Therefore, unlawful gambling activity may also constitute a money laundering offence. Indeed, individuals involved in unlawful gambling activity have been indicted and convicted of money laundering offences in addition to primary convictions for unlawful gambling offences.
Since commercial gambling is unlawful in Israel, and the only lawful forms of gambling are conducted by the state, the only relevant tax is the tax on gambling winnings.
The winners of prizes (including prizes from lotteries and betting organised by the ISBB) may be subject to taxation.
Prizes in excess of 50,000 shekels are subject to withholding tax at source. Tax rates are incremental for prizes between 50,000 shekels and 100,000 shekels, and are set at 30 per cent for prizes above 100,000 shekels.
If a person offers, sells or distributes tickets or anything else that attests to a right to participate in any lottery or betting, or if he prints or publishes an announcement of a lottery or betting, he is liable to one year imprisonment or a fine of 150,600 shekels.
The law does not distinguish online advertising from traditional advertising, nor does it distinguish advertising for foreign gambling operations from advertising of local operations. Historically, the police have taken action against advertisers specifically targeting Israeli customers, both online and offline.
In 2017 the Ministry of Finance imposed strict limitations on the advertising of gambling activities by the National Lottery.
The most significant development over the past year has been the decision by the Ministry of Finance to revoke the permit previously granted to the National Lottery to operate a limited number of VLTs. The revocation occurred as part of the renewal of the National Lottery’s licence. The Ministry’s decision to revoke the permit was strongly opposed by Lottery concessionaires as well as by local government (which is a major recipient of Lottery revenue). The decision to revoke the permit has been judicially challenged and the matter remains pending before the High Court of Justice (as at April 2018).
In addition, the Ministry of Finance has announced that it intends to further restrict the availability of gambling in Israel by disallowing the offering of horse race wagering by the ISBB. The Ministry is also considering revising the existing regulations on sweepstakes and promotional draws, a move that may result in such activities being further restricted.
Finally, in October 2017, the Israeli Knesset adopted legislation effectively banning the participation of Israelis in binary options trading and ancillary activity.
As noted, Israel is notoriously conservative with respect to gambling. Therefore, it is unlikely that the coming year will bring any liberalisation to the market. In fact, it is more likely that the coming year will see the introduction of bills intended to further restrict the availability and proliferation of online gaming (e.g., through ISP blocking measures) and additional restrictions on the activities of the National Lottery and ISBB.
1 Yehoshua Shohat Gurtler is a partner at Herzog Fox & Neeman Law Office.
2 There is no official translation of the Israeli Penal Law. The translated text used here is from ‘Penal Law 5737-1977’ Aryeh Greenefield, 1996.
3 Class Action (Tel Aviv) 30284-01-10 Simon Davush v. Connective Group Ltd.
4 Announcement Regarding General Permit for the Conduct of Lotteries for Commercial Promotion Under the Penal Law 5737-1977 (in effect as of 1 January 2010).
5 Class Action 25717-10-13 Bar-Or et al v. ETrader Ltd et al.
6 Announcement dated 22 March 2016 – ‘Israeli Securities Authority Has Decided Not to Allow Trading in Binary Options on Trading Platforms’ (available in Hebrew at http://goo.gl/PKOvbO).
7 HCJ 239/17 Haim Tal et al v. Minister of Finance.
8 Regarding the classification of foreign entities offering services in Israel see, Class Action (Tel Aviv) 30284-01-10 Simon Davush v. Connective Group Ltd and Special Requests (Tel Aviv), 908617/07 Carlton v. The National Unit for the Investigation of Fraud.
9 Administrative Appeal (Supreme Court) 3782/12 The Commander of the Tel Aviv-Jaffa District Israel Police Israel v. The Israel Internet Association.
10 Bank of Israel, Supervision of Banks Division, Conduct of Banking Business Procedure No. 411.

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On November 3, 2014, Judge Richard J. Leon of the U.S. District Court for the District of Columbia, issued a scathing opinion striking down a regulation promulgated by the U.S. Department of Housing and Urban Development (“HUD”) on disparate impact discrimination in housing. The plaintiff in this case, American Insurance Association, Inc., challenged HUD’s promulgation of the disparate impact rule, which provides for liability based on disparate impact under the Fair Housing Act (“FHA”). The plaintiff claimed that HUD violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 551 et seq., by exceeding its statutory authority when it expanded the scope of the FHA to recognize not only disparate treatment claims (i.e., intentional discrimination), but also disparate impact claims (i.e., facially neutral practices with discriminatory effects).
HUD’s Action Under the Administrative Procedures Act The court reviewed HUD’s interpretation of the FHA through the lens of the well-settled Chevron analysis for deference to agency rulemaking. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under the Chevron analysis, if the intent of Congress is clear as to a specific issue, then the court will not consider agency interpretation of the statute, “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron at 842-843. However, if the court determines that a statute is silent or ambiguous on the specific issue, then the court will consider whether the agency’s interpretation is based on a permissible construction of the statute. Chevron at 843.
In determining whether the statute was plain on its face, and therefore without need for HUD’s assistance, the court began with the language of the statute. HUD argued that Congress’ intent to recognize claims based on disparate impact under the FHA could be found in the language of the statute. In response, the court undertook a pointed analysis of the words Congress used in the FHA, specifically, “refuse,” “make,” “deny,” and “discriminate.” The court noted: “The use of these particular verbs is telling, and indicates that the statute is meant to prohibit intentional discrimination only. When Congress intends to expand liability to claims of discrimination based on disparate impact, it uses language focused on the result or effect of particular conduct, rather than the conduct itself.” The court found no such “effects-based language” present in the FHA.
After failing to persuade the court that the plain language of the statute demands application of the disparate impact test, and failing to successfully analogize the FHA to other federal statutes that do allow for disparate impact, HUD resorted to legislative intent. The court proceeded to note that the ADA and Title VII, which according to the court do provide for disparate impact claims, were enacted not long after Congress amended the FHA in 1988. According to the court: “These two statutes powerfully demonstrate that Congress knows how to craft statutory language providing for disparate-impact liability when it intends to do so.” The court found that comparable language was absent from the FHA.
Judicial Treatment HUD also argued that previous holdings of other Federal Circuit Courts that recognized disparate-impact liability under the FHA preclude the court in the current case from finding that the FHA unambiguously prohibits disparate treatment only. The court offered two bases for rejecting this contention. First, the court noted: “The Supreme Court itself has made clear that a statute is not ambiguous simply because there is a lack of judicial consensus as to its proper meaning, and judges cannot cause a clear test to become ambiguous by ignoring it.” Second, the court noted that while the majority of the other circuit courts of appeal have held that the FHA does allow for the use of the disparate impact test, none of those circuits has recognized disparate impact subsequent to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005), which made it clear that an inquiry into the availability of disparate impact liability turns on the presence, or absence, of effects-based language. The court was also careful to note that while a majority of the other federal appellate circuits have upheld the applicability of disparate impact test, the D.C. Circuit is not one of those circuits.
This is, yet another example of an Administrative Agency trying desperately to write into law that which Congress never intended to sanction. While doing so might have been more understandable – and less troubling – prior to the Supreme Court’s decision in Smith, in its aftermath it is nothing less than an artful misunderstanding of Congress’s intent that is, frankly, too clever by half. Defendants, of course, were somehow hoping that a favorable Chevron analysis would muster the judicial deference necessary to salvage their much desired Rule. But alas, it did not. Fortunately for us all, however, the Supreme Court is now perfectly positioned in Texas Department of Housing to finally address this issue in the not-so-distant future.
“Perfectly Positioned” Judge Leon’s mention of Texas Department of Housing at the close of his opinion is a reference to Inclusive Communities Project v. Texas Department of Housing, 747 F.3d 275 (5th Cir. 2014), cert. granted (Oct. 2, 2014), where the Supreme Court agreed to consider whether disparate impact claims are cognizable under the FHA. This case represents the third opportunity since 2011 that the Supreme Court has had to definitively settle the question of whether the FHA contemplates disparate impact discrimination. The Supreme Court previously granted certiorari in two similar cases, one in the Eighth Circuit, Magner v. Callagher, 132 S.Ct. 548 (2011), and the other in the Third Circuit, Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc., 133 S.Ct. 2824 (2013).
Judge Leon describes the issue as being “perfectly positioned” for a definitive Supreme Court decision because, unlike the prior two cases pending before the Court – which were settled before the Court could resolve the issue – the governmental litigant in Inclusive Communities v. Texas Department of Housing is unlikely to succumb to the same sort of pressures that were applied in the prior two cases. Unlike the other two cases, which involved two decidedly “blue states,” and involved municipalities that could be influenced by pressure from the Justice Department, Inclusive Communities v. Texas Department of Housing involves the state of Texas, a litigant that will be considerably more difficult to influence in avoiding a Supreme Court ruling. The fact that on November 4, 2014, Texans elected Republicans to the offices of governor and attorney general only confirms this reality.
In view of the recent mid-term election results, where the Republicans have gained control of both houses of Congress, the timing for proponents of the disparate impact test under the FHA could not be worse. Had the issue been addressed legislatively in the early years of the Obama administration, where the Democrats controlled the White House and Congress, the FHA could have been amended to explicitly address disparate impact, thereby avoiding the Supreme Court showdown that is now almost certain to take place.
Mark S. Melodia is a member of the Global Regulatory Enforcement Group, resident in the firm’s Princeton and New York offices. Mark regularly represents banks and non-bank financial institutions in complex consumer financial litigation matters.
Travis P. Nelson is a member of the Financial Services Regulatory Group, resident in the firm’s Princeton and New York offices. Travis is formerly an Enforcement Counsel at the Office of the Comptroller of the Currency and regularly represents financial institutions in regulatory compliance, enforcement, and litigation matters involving consumer financial services issues, including fair lending.