that has been there's no issue of that on appeal the transactions occurred about seventeen years ago the actions are retired and living on what savings are left the only issue of force is the year of the loss and the and issue here is how court interpreted the regulations and applied them to those facts but the last wasn't two thousand and two and at that point there was a reasonable prospect of recovery right though the loss was in two certainty passed in applying the johnson case to it in that they required only their only fact they relied upon was the fact that the the had  determination that you hadn't abandoned the claim it is rather that the c f c treated abandonment as the only possible ground on which you could justify getting that deduction and that plainly wrong under the regulation you're entitled to have your claim continue and yet meet the standard of ascertainable reasonable certainty that you're not going to get there with every that you wanted out of interest and she the district court of federal claims did not make a specific finding on who wrecked ok why on the assumption that a court of federal crimes did not make that finding because you can have your claim go and still take the loss if the probability is low enough correct right what is the evidence that would justify sending it back for a finding about whether the probability is low and well the evidence was overwhelming  ground at the back because i think it recognizes that abandonment is not necessary for you to prevail so the real question is what is the evidence on whether you had a reasonable certainty that you were going to get the money that you wanted it out and the core of what i think they focus and focus on is you didn't make efforts to find out what assets that people had that you were suing in n a s d well i think i think th facts in that situation that we didn't say that the records were of these people were for the most part had already been seized by the federal government for for their investigat and the police of guilty which were done in two thousand and four for many of these people included forfeitures on and some restitution but as the facts showed in the truck were the chance of restitution it would what it means out of business they shuttered their doors what is at that's another metaphor to how do we know that they didn't have any money because they disappeared i mean it was there was no record of any  coming after two thousand and two and and we found nothing to trip to pursue at that point that whatever records of going company had been taken by the government we subpoena those records and that was one of the things we mentioned in our brief criminally charged individuals i think it's to them by indictment one of them by information what evidence was there that you could be reasonably certain that those individuals didn't have enough money to pay you there were several things first off just the fact that we did get their financial statements that they had in later years it was in the year two thousand  that did not exist but we did have in later years and they have nothing and also the record showed that their restitution payments were so low that which is based on income that they certainly would not have had a lot to get plus what was seized and forfeited were not a lot of assets and if they'd had more substantial assets certainly their men would have seized that right so this goes to the point that while  the question of reasonable probability has to be forward looking and you can look at at subsequent events to determine whether or not that reason will probably existed at the time especially in this case this is a the refund was found in two thousand court disallowed it we don't know because we never saw it but we would think so because they seized all the records evolving and they seized all the records of these individuals regarding these transact that when it's just closed their current assets as at that point correct i mean and certainly there were there were ongoing schemes and and devices going on in multiple areas not just for the my actions my turn stock but electric and several other stocks were well with so you know that our principal point also here is that you know because there was no reasonable prospect of recovery and there's no reasonable certainty that they would get anything as  thousand and four it was it was there was just no hope at that point and that's when mr reckons you know basically pulled the plug and and basically said walked away  that you're going to have an act and this is the first point because i don't even understand why the i r s would like that the methodology that's been adopted by the court of claims and as i read the regulation it says if there is a reasonable probability of recovery that's the standard and that reasonable certainty is the is the evidentiary level that you have to prove that standard so is there a reasonable probability of recovery and can you establish that there's not to a reasonable certainty i don't the notion that there would be two tests and that somehow it would be easier early on when you might really haven't even pursued a claim and then harder later doesn't make any sense well i think you made two points or honor the first one is that i think it was a stretch run to point it out in our brief we kind of stepped away from that bright line test of you have to abandon it but we still the ira still read the regulation as more of a temporal regulation that in the year of discovery you look you have a reasonable prospect of discovery reasonal proper reasonable prospect of recovery early on and if you do then later years as you're pursuing your claim as you are presumably doing your investigations and getting more information and you have to show that even ascertained with reasonable certainty based on what you've that you have to prove by a reasonable certainty that you no longer have a reasonable probability i understand that the word reasonable shows of places not of regulation but there's several other courts including the that tenth circuit and others who have interpreted th in a more logical fashion than the court of federal plain seems to happen in this case now i'm not sure it ultimately changes the result in most cases but it's but it makes it easier regulation to understand w says even though you discover it in year one right you if you have a claim you can't sue if there is a so efficient probability that you might recover until that probability doesn't exist anymore as shown by a certain kind of evidence but the probability is the say at the front in your one year two years three or four there is no higher level of probability just a i don't  i'm not even sure there's a different level of proof but it's the same probability well so long as them so long as these test remains ascertain with reasonable certainty that i'm not going to get my money then it probably will not make any difference in this case later point in time and so much higher standard isn't it yes or certainly it's a tree with reasonable certainty is a higher standard than simply reasonable  and i don't think there's a problem in this case because i think there is we're all in agreement we are certainly in a later year and certainly it's the asking with reasonable certainty test that would apply to your two thousand and four no matter what s what reasonable probability not yet remote possibility there still has to be a reasonable probability and so the question is in two thousand and four what do you have or you know or or whether or not we've had sufficient findings with respect to what we have in two thousand and four yes what we have for two thousand and four is going it's the taxpayers burden to show that the taxpayer ascertained in that year with reasonable certainty that i'm done talking about a bad image there wasn't an abandonment now i need to figure out whether there was a reasonable certainty that that that there wasn't going to be a recovery and here's why i find th  the evidence is not well this is like the dog that they didn't bark is that we went out to say for example the actions did not undertake themselves or with any other victims to where the issue there was the forty four million that the government in that case was going to be used to help set up restitution and that entirely discretionary decision and it happens in extremely rare case but it's in two thousand and four the year in which mr atkins was taking this deduction so early in the process you could not rule that out just by looking and saying again maybe there was a remote possibility that that the attorney gather its doors don't open any more what does that mean find about financial it means it means that it is no longer actively conducting business it does not necessarily mean that the assets might have squirreled away like the one point two about that the following this fact do they really need to have determined that they were going to recover nothing but if they had said ok i think there's some there's a chance worth pursuing that maybe there's one hundred thousand dollars but out of my two point five million dollars last i know and it's perfectly clear there is no way and getting two for two point four out from it why are they not entitled to take the two point four in two thousand and that's answered by the court of federal claims second opinion in johnson if they've ascertained with reasonable certainty that the two point four no we're not going to get it it's just you know remote chance then in that year they can take the two point four they c knew from that evidence that there's a portion they were absolutely not going to get that's the verdict that would be the burden of proof but we've already had a three day trial where they had the opportunity to put on that evidence about what they knew at the end of two thousand and four so i don't know what well they may put on evidence that i think you know we weren't going to get anything within the permissible fact finding on the evidence for the court of federal claims to consider but i'm not persuaded nothing but i'm really pretty persuaded that practically nothing if the court a federal claims were to look at the evidence that's in the record and and it was persuaded i might note that most of it's there is on cases that say you don't have to hope for restitution sixteen or a hundred sixteen years down the road i mean having sat on the bench for years and years that in the district court i don't think i ever saw anybody get more than a penny or two in restitution so you don't have to assume that the possibility of a restitution after all the assets are seized is is a reasonable probability i think that you need to take a look at it and in two thousand and four it was so early in the process we had the indictments we knew there had been guilty pleas those were still under seal until two thousand and five so you really couldn't rule it out in two thousand and four and all that means  that the deduction gets delayed indeed if you look at the again the johnson case the taxpayers there make sure they got protective claims in for every year because these cases can be pretty fuzzy and you want you might have to if all that means can be extremely consequential which is why you're you care so much about yours i mean if you really if if you move from actively earning income to retirement years there may be nothing to do today to deduct the thing  against but the key is again to find the right year under the test in the regulation b if it's a year that happens to be favorable to the taxpayer so be it happens to be favorable to the government so better at this for at the supreme court said i don't have to be incorrigible optimists no they don't test today they do not have to be encouraged by optimist but we would still maintain that two thousand and four so early in the process with all the evidence that that was not  asset searches and determining what's really going on that it's just not the right years just too early if if the denial as to two thousand and four is up held what are they supposed to do and if they right it's perfectly clear there was a very large loss they should be entitled to a deduction for when can they get it looking at all the facts in the in this particular record the government's position that on this record the proper year would be two thousand eight which is the year they formally withdrew their arbitration claim not because of a bright line test but because of the lack of other evidence of searches and all that to rule out and they  it for two thousand the problem is that they never filed a refund claim for two thousand and eight which is odd because that's the root withdraw it's all in your view is they're just out of luck because they they have  they withdraw their claim but also in december of two thousand and eight the i r s denied the refund claim for two thousand and four that's still within the tax year so that it hadn't even had wouldn't you have said two thousand it was too late if they'd made that claim i mean really thousand and four regardless of what they mean i would answer that too is your honor to come back again to the possibility restitution secondly we're not trying to play a shell game here we looked at this and the government's position is that two thousand even if we find that there's insufficient findings on or on the record if in fact two thousand and five or two thousand and six is a more logical point in time you have a problem because you didn't make any protective filings as it relates  code which talk about if there's a double denial of a deduction meaning that because you filed in the wrong year and there's a finding that it's a different year that the court can go back and and fix it by saying no you're allowed the fraction in in two thousand and three or two thousand and five and and in are judgment based and calculate damages and an inner judgment based on that i do not believe