our good standing in the hot the highest court of illinois i have knowledge of her credentials and i'm satisfied that she possesses the necessary qualifications and i'd just like to add to my own that they do say that as one gets older the time goes by more more quickly and that certainly seems to here because it's just astounding to me that our year with jesse is coming to an end and don't tell jesse but i'm working on a secret plan to try to keep up with the perpetuity on the other hand while the years gone by quickly in certain way it really feels like she's been around for a very long time and that's because i've really come to depend on her in so many ways her good judgment steady hand her good humor the clarity of her thinking  writing and her commitment to the law and really mr if and when i do let her go and if and when she be nice we look forward to her continued this ship as a part of our family and i'm sure welcome all right the first case the first cases we will hear are this morning our appeal number two thousand and nine five thousand eight bush the united states sent two process proceedings warrants a notice of final intent to libyan assets has been issued which takes place like six months into the collection process or after a federal tax lien has already been filed and then you have to go through a collection process hearing before the r s and then can take that result to the tax court obesity is basically an abuse of discretion standard that is not the file a petition at the tax court to challenge the asserted tax liability before payment is mandated or required are you agree that this not due process procedure was available from the have no rights to subpoena witnesses you have no rights to it once it goes to the tax court there is no further right to develop the case or evidence it's reviewed solely on the record from the appe discovered right there it is just completely different process your honor it's the burden is totally on the taxpayer to come in makes his entire presentation one hearing there is no opportunity to conduct discovery  there is no extensive briefing review it is i'm sorry there is just a completely different statutory provision and opportunity i grant you beyond the action for a refund normally in that forum then the liability would be litigated and an appropriate resolution reached but the basic thrust of your argument here is that it's not so much the liability as such it's the failure of the notice in the first ones but there seems to me to be some thing that a notice was required there's no way to correct this there's no way to give a new notice and then litigate it's just the government's our lock something strikes me as just terribly unfair  and whether that result is figure on fair isn't really the determining factor i mean literally there isn't even a showing that there's any prejudice there's no evidence that i'm aware of there was no no record of valor as to whether even there was something colin again in terms of the amount of risk the determination that they could not take into account for purposes of the amount at risk the partnership debt and that they were limited to the amount of their capital contribution the that is and the tax payers read that everything on the partnership tax return was in fact valid and correct no changes that means a partnership dead system that means capital contributions were valid that means the losses cla the amount of risk capital that the notice of deficiency would be dispensed with it's probably not going to go quite a hundred percent that far because there are some exceptions but i in fact in the notes i made for the presentation t adjustment flowing down from the partnership but i'm still a little unclear from the empiria to my question when the government maintains that they could determine partner level decision in that moment agreement and past tax return you disagree with that yes they do how they could determine his mail at risk and from that you could make it to a calculation of what would the liability be if this is only thing were to look at and that could be done mathematic y but a notice of deficiency is a determination of what your liability is what your actual tax liability is taking into account everything relevant to the partner's tax y that he was entitled to certain offsets under the contract under the suddenly grows against that liability for overpayments that resulted in later years under the verge terms of the clo the i believe could have properly been considered in the tax court in determining his ultimate tax liability for the year not just with the figure would the fictional liability be if the only thing we were looking at were the at risk adjustment but everything else related to the tax payer he could have also raised for example and this is one of the most common ones that actually happens in terror cases had he got a sta of those kinds of factors in some instances it can be argued that one spouse on a joint return is not while the other spouse is that argument can't be made with a partnership i conceded some of the in the lower court because of the cost and conflicts of the of continuing to pursue them the record will reflect that included in these refund claims with the claims that the government had failed to properly apply the offsets from subsequent evidence on that argued it in brief to their preparing for those issues were much less important than this one in balancing the cost of litigation to claims and in that proceeding in order to expedite the case moving through we had we had conceded i think it was three of them is for such we feel like those did exist in this case that we don't know what the outcome of all those claims would have been but they were there were valid claims that were valid dispute whether or not we would prevail on them hinges on some highly technical tax aspects for example as to whether or not the increases later increases whether or not income averaging whatever reduced for billing that wasn't the focus of this case is it possible yes it's highly possible that was a very common factor back in those years receive chapter thirty sixty three which is the tariff report or ship procedures related to partnership items only relates to partnership items how they're determined on the partnership return pass through the park or nowhere is added risk ever consider at the say that that's required and those are the only items that can be considered computational item but if you're right than that is what the definition says it says to properly reflect treatment under this chapter whether or not part of the partnership debt is not determined under that subchapter it's not determined at the partnership level allocated under the chair for rules were dealt with under the terror rules in any way shape or form the the buried by the terms of the statute also or by the statutory scheme as to how it operates as well by the press in this court if you look at sixty two thirty it's six and it's on fifty nine of required and wasn't given they could have presented that as a ground to resist the collection of sixty three thirty proceed i believe so because you have the opportunity to play the liability itself is invalid you can do experience right so the only case involved that supports the taxpayer on being able to raise this issue in a refund proceeding is the fourth circuit case from singleton or whatever the name of it which predates the one nine hundred ninety eight sixty three thirty procedure so the question i have is why isn't there a waiver by the taxpayers then we are to follow the sixty three thirty procedure ob this objection to the failure to give a notice of deficiency well i don't want to hopefully argue against myself in this particular context but  wasn't given ok so why doesn't the failure to follow that the billable procedure bar them from raising the issue we want because i believe that the i believe the answer is that the taxpayer has a isn't there a difference in the in the we normally as you pointed out the taxpayer would have a choice as to which route to proceed and and the liability could be litigated in either who're but here we're not talking about the actual liability as such the merits of the liability if you have real we're talking about the there you do provide a notice  that that if you becomes just a technicality in the context of the case that it's no particular with the government having no recourse whereas that that matter could be could have been fully here had it been presented to the tax court and if there was a deficiency it could have been remedied at the time that it it does seem to suggest that a waiver of the waiver concept would apply in those under those circumstances would it not i agree with you i very much agree that what's going on here potentially works an unfair result few if you if you adopt the taxpayers well as any income partnership generated because that also increases actors but they don't get the accuracy they don't get paid partnership losses that they play that they are at risk litigate the failure to get the notice both through the sixty three thirty procedure into the tax court or alternatively seek a refund i mean maybe honor it does have a does have an appeal i also agree that there is no precedent consider the waiver based on how the taxpayer goes about raising this particular issue given that there would have been a  have even the at risk determination is by definition affected by treasury regulations state that there's copious amounts of case law that agrees with that concept that concept and and so when you amount controversy here as far as whether the partnership items cost the liability in this case the answer is no i agree that right answer that's your problem simply didn't harz ok the change here how nicholas school when the some position that it recognizes requires a partner of determination it takes with something else it's not considered at the partnership well i understand your argument that there was no per partner level determination require and that seemed to be factual determinations i do not think it matters actually it's a bit red herring to say that just because the calculation as mathematically what it was was not based on you know if we really try to tie this particular a liability based on four sixty five at risk amount i think that's what they're arguing in that would be our point our position on that so that's relevant that has nothing to do with calculating liability has to howard how are you going to pay that liability would some of the calculations with regard to their partner level tax liability write it well and it seems to me the statute doesn't that the computational but just human language of the refund of the power in the amounts of an overpayment attributable to the application to the partner of a settlement and so therefore when you win when the when there's no can question as to that the basic liability before was from four sixty five because there are other things that we could potentially raise i think the problem with that is that the statute barry says that in that context when when you're claiming what the government has is that for instance they didn't apply  carry back from a waiter year to that tax year and say therefore you know they assess too much and they also assess too much interest in that context i think that that sixty to thirty c would be sad as that that was no longer any need for a partner level determination to determine his tax liability there would be to determine the at risk the out there would not be there i'm sure if you are of that the distinction is very important because if you have the right to the nervously you have a right to do to raise anything else that goes to the issue of his tax liability statutory notice of deficiency isn't it noticed that we've adjusted your at risk admitted the partnership with us about it is that we have made  you're looking briefly make an additional comment about the sixty three thirty application to have the right to even have a right to a hearing under sixty three thirty the taxpayer has to first decide to disregard the assessment notice let thirty day sixty day ninety day notices go on responded to wait until he received not only a thirty day notice content a levy but also a written notice of his right then to a c d p here in meantime he has to with interest accrue and failure to pay penalties occur the taxpayer goes to extreme risk in relying on a sixty three thirty here that is intended as a last resort and where a tear for a partnership related assessment and assessment resulting from partnership item changes had been made and the tax payer sloops the government user either a road usually computed the liability now that the whole issue of what's fair what's unfair you know early to have a taxpayer's reform plan was denied based on statute of limitations where the merits are in their favor that's a fair protection law does that there are instances where there's a supplemental grate on applicability of section sixty three thirty and this issue of waiver that we've been discussing if you could do that no more than ten pages doubles face within cases are submitted