all right as you probably noticed from our briefs our primary issue here is discovery and it's fair to say that the remaining issues that we've raised on this appeal are mainly in the event that remain and those were issues that we thought might be  know of no way you can get around that statute by an equitable stop well i must admit that it's not a theory that has been established well in the law however the principle of equitable sto has been established it just hasn't been applied to this particular section of the internal revenue code but it has been applied against the government and our contention would be if the evidence supports it which we would have to obtain through the discovery we're seeking our contention with you that if the i r s knew that mr white was stealing money from these partnerships in the tax years that issue and actively concealed that fact then we believe equitable stoffel would bar the i r s from him from enforcing section one sixty five which is the year of discovery rule that's  here if if these things are deductible in the year in which the theft occurred then of course the penalties in interest are either minimized or eliminated and that's exactly what we're trying to accomplish the extensions of the statute of limitations was based on transparent which is a case that's cited in the respondents brief and we argued that below but it isn't a primary issue on this appeal transparent courts that where serious conflicts exist tax matters partner may be barred from acting on behalf of the partnership and then the transparent court made a number of comments about what is required and each of those things require discovery for example did the service have a strong interest in capitalizing on a possible conflict of interest by keeping the tax matters partner in place and remember the mr well i think you made an argument in terms that mr white obviously had this long running swindle calling on ants to get him to cooperate they want him to turn things over i mean this investigated forever and ever kind of starts and stops and start stops obviously probably i don't know that all of the people did in fast and were innocent there might be some people but i think the district court it was cited said these people are all innocent ten all of that well y i don't know whether that's true or not but obviously mr white doesn't want his harsh house of cards to fall so his interest is you know you've made an argument that his interest is different than the people that he's representing so if that being the case you know what you know what can you gain from discovery you know how is that going to take your defense of the case well the tennis court didn't believe that we had shown that the i r s knew of these disabling conflicts or tried to take advantage of them which is what transpired requires the only way we can know if the i r s knew of the disabling conflicts and tried to take advantage of them or made any sweetheart deals with hoyt ok but if you can prove that and assume that that evidence is relevant what can you what can you do then if we can establish that we've set a spy the criteria under transpa then we eliminate these extensions of the statute of limitations for a number of the tax years and it would bar the taxpayers from having to pay those taxes at all including the penalties interest and the primary t if you can show that you can win that's right and that's why we need discovery of the central files to know what the i r s knew and how they were dealing with hoyt during these years beginning back in one nine hundred eighty well in litigation i guess everything's a bargain in any side acquires but that's simply incidental what we really want to do here and i've said this on the record it's in the record voice all right in the record in these is my statement several times that we really just need to be able to evaluate these cases and evaluate the merits of our theories and did fire as our clients did we cannot in good conscience tell our clients this is a terrible theory and we should drop it when we haven't seen the evidence that would allow us or not allow us to pursue the case so right now you're right sensually have to rely on the i r s that the tabling conflict that was their kind of conclusion correct right and you have to rely on that and if there was a disabling conflict you're saying that that would that would then put you in another posture where you could knock out certain tax liabilities how much it would be millions the exact amount i couldn't tell you off the top of my head but we're talking about in this case just nine partnerships and i think for tax years so that's thirty six partnerships for you know for those tax years and there are approximately thirty investors in each partnership so each of which has hundreds of thousands of dollars of tax liability i might hundreds of thousands each including the interest and penalties let me put this to you know records our experience is that we when we have been allowed discovery we've been invited to come down and look at the original documents and select what we want reproduce and limit the cost that way and that's what we would do yes we could afford to individual investors who have tried on their own to accomplish something as opposed to this group effort that i represent they have not been able to mount the resources to develop the record as we have to to appeal to this level to garner what evidence there is from other sources such as from the u s trustees office and from various other places so the records in those cases are very poor very very and they don't tell the story of what's going on in this entire audit now with regard to your specific question phillips found that the the petitioner their heads failed to produce evidence that his partnership was one of the ones being investigated we can show that all of these partnerships were under investigation in our case which was tried here in the tax court back in two if we can't establish our equitable and stop all theory to take the theft losses in those years then it doesn't make a difference however the tax lawyers who represent the individual investors told me  that even if only at the end of the process when in one nine hundred ninety seven one thousand nine hundred ninety eight when these thoughts were discovered even if they can take it then it's better for the investor somehow and i don't understand it frankly it's better conflict that you could continue to deal with mr white and he could continue to function in that capacity his representative capacity and the appellant essentially saying they are in a position without discovery that they have to rely on your determination in the like if you trust me we're the government we're here to help and that they have to rely on your interpretation and they're saying if they were able to establish that he did have this disabling conflict they would then be the extension shouldn't have been granted and then they would not be liable for a lot of the taxes that they're presently liable for what what do you know why do they have to rely on your determination when there's a lot of things out there i mean that's saying we have to be sure that you're right so let's let's take a look at the  these various proposed conflicts one of which would be the criminal investigations a hole by the i r s of which there were four we know the dates of those already we also know the dates of the extensions all the extensions except for the audit was going on already i know when it happened right then if he had not granted them presumably the i r s would've asked was right then and there are i to get them out there ahead of the extension come again there's no happen because that's going to further disclose this wendell as it were whatever we were that's been ongoing wouldn't his motivation at that point be different then the other partner lot of litigation involving the partnerships and i'm not mistaken i checked the dates on the i r s to probably already started freezing partners refunds saying we're not going to give you refunds for these deductions because they're no good so i guess if there's you know i mean you can say that you're not going to give anything that you don't have to give but just given that there could be something in there and there could be a difference of opinion as to whether whether there was a just a plain conflict  you know what's the danger if there's nothing in there what's the danger of turning it over that's a good question and it's got to go back requesting certain camera review only you know in that situation for someone other than i mean obviously there's an interest for the i r s to defend its position that they that there was not a conflict and obviously he has an interest to show that there was and presumably you know the judge would be able to look at that and if the judge looked at all that and said there's no evidence here you don't get it you know then they've they've taking care as satisfying you know that they have pursued that defenses far as they can go and you haven't disclosed anything confidential well certainly if there is something there it seems that they certainly should sorry given the vast amount of documents you have to look look at what's going on in the criminal investigations that are covered well i guess in what is what he's put forth in terms of what he says you know if there was a disabling kind of conflict and the extension should have been granted and therefore they wouldn't have been liable why wouldn't it be relevant to look at that kid to look as far as they can into that actually benefited as against the challenges of the government benefit of the members of the partnership partnerships is there any way i get on the record not specifically i mean it usually gives us more time to work things out try to figure out a resolution for the case but i don't have any indication that in the dealings between the hike or you don't know well answer your first question i don't think there's any evidence one way or the other that anybody benefited from that answer the second question the closest i think we would come to it government went on commonly cattle and they weren't there it did have a coincidental effect of reducing some of the income going up because there weren't as many fans and cows being passed up through sharecropped agreements but that's i mean that settlement and the underlying documentation the iris the explanations of it are on the record i believe in a supplemental excerpts of record and you could read those and there is nothing nefarious going on now does that extension give the i r s more time to investigate and get more cooperation from someone in that sense i mean it's obviously it's like you said if you don't have the extension then you issue the deficiency and that's that's out if you want  still keep looking and you want you hope that there that someone's going to keep giving and you can get them in a cooperative stance is that there are some advantage to the extension so that you have more time before you have to do that whether it's there is because you have more huge swindle it took a long time but it did take a long time certainly extensions were the government's benefit if you give us more time it might also work to the taxpayers benefit in that you might be able to work out and settle an issue rather than go through litigation i can't say in this case though that the extensions really helped one side or the other all that much there probably more in line of what the this court described in philips that's routine accommodations rather than anything unique or special now on how you characterize the theft whether you know from the individuals or from the process on the other hand under the government's theory each individual partner would have to come in and would have to show that the year of discovery was still open at which point you have been several settlement partnership why would it make any difference anywhere case no i don't think it makes any difference to our theories of the case which state you put them in stated a different way if the court had years of five partnerships i couldn't tell you off the top of my head exactly which ones they are i could get the actual course you need to know that but we could look at separate decision documents entered for each each of these cases  tax years in fifty two of them the issue timely by the iraqi was no extension and no need for an extension the statute of limitations issue applies to ten tax years the five partnerships out of the sixty two total and think you know if you look at it the tests were from the individuals not from the partnerships the mere fact that the money passed through these conduit entities and let me get back to about the theft thing from the individual and not from the partnership  several cases river city one girl farms this case as we know how what rand is partnerships we know what was going on here that he controlled everything that these were not individuals coming together to form partnerships they were recruited by white placed in is that just evidence that the tax court i mean as a matter a lot of the courts have to find it was from individuals well if it were getting from the partnership if you're right on the statute and then there's no equitable arrangement that cannot allow them now i think i might best spend my time by addressing the how the discovery would work on remain and because of the concern about i think the phrase was used the fifth edition for other causes of that and the standard remedies for that that exist in all cases that are available to the tax court protective order no disclosure beyond counsel unnecessary experts and second camera inspections anything that's claimed to be privileged all of those things can take care of any such problems and i should also point out that neither i nor the group i represent have filed any lawsuits against the i r s but individual partners do we can't control question had to do with if if this panel were to assume for a moment say that additional discovery that you are entitled to educational discovery does that require vacating the judgment and then for the lower court to determine after the discovery if there's any effect what it what effects because obviously the court could look at it and say there's nothing there and so you can't show anymore than that there are some issues that aren't affected by for the discovery that you know we could or you think we should refer you know could be decided i just don't agree with with his position all later if it can be stated as a matter of law that on no set of facts any set of facts imaginable or not because we just don't know what they are if it can be said as a matter of law that that relief isn't available then certainly  discovery that's relevant only to those issues would not be appropriate but i don't believe that it can be said here until we know what the facts are and know what the evidence might be i have a feeling to to here and i think that i don't see any way to what you're granting if you grant discovery is discovery as of the time it was requested which was way before all of these theories were refined and worked out and tried