today is whether a taxpayer in a civil tax matter is entitle to his day of court to argue was case on the merits or whether the doctrine of collateral estoppel shall prevent him from doing so what is in the court today is the fact that somebody who  that the tax laws would exceed one hundred million dollars but he pleaded guilty that he did not pay the taxes that were due he admitted that he committed tax evasion under section seventy two zero one and what does that comprise of well there were several items there were certain bank account you know what i mean to me it means he admitted he didn't pay the tax he admitted that he evaded the tax it was never a determination as to the amount of tax due and  stipulated as to how or when that that income should be taxed the sense that was the majority of the income could have been taxed against him isn't there and here it's connection that we can make between the two and then say oh yes but i didn't mean i don't want no it was to be determined by the tax court and even judge friedman once the matter went up on appeal and was sent back to judge freeman where the appellate court determined that judge friedman could have ordered restitution to the united states government he decided to have the united states tax court to make that determination he chose not to do it he certainly had all the information that the tax court had but he was not familiar with the nature and character of the income control foreign corporations is it one is it not one is it just a foreign that we don't even need to get to that do we because he admitted to evading the tax yes the majority of tax would be due on monies from d n a and he admitted to the g and a income i mean i i fail to see where there is a step missing in that he never admitted he where it came from well that he will fully intended to evade a tax ok and why should that be dispositive not as to the amount of restitution clearly no one saying that he did not plead guilty to what your honor even try while i'm not it i understand that your honour's it's in the ferguson case and i think it's a dangerous path that when you start using in a guilty pleas there are many reasons why people may plead guilty and ultimately what would be an other reason why he would be guilty to one hundred million you are as part of the plea bargain which is a contract which is clearly said and we've got a pretty good bargain to why telling us what you know he could have he could have been held efficient two hundred million if this thing had gone to a hearing on the exact figures and he pled to one hundred million he got a pretty good deal  he got even then below the the ten year he got what nine years and six months so that you when you talk about what goes into a plea i think there are factors on both  sides i understand that your honor and in order to get that sentence your honor you have to come up with a dollar amount so it would be no different in a matter of fact in the ferguson case was the flipside where a drug dealer  d you know admitted for his plea a certain amount of drugs being sold then he goes into tax court on the civil end of the plea and wants to say oh i only sold so much marijuana or cocaine therefore i only have so much  to pay on that and the government wanted to prove by other indirect methods that it was more than that and they were held that you know he was not he couldn't invoke the doctrine of collateral estoppel and that i believe the tax court should have looked at the nature and character would be a hearing on whether it was it was chapter f or not but then subsequent to that there was the agreement of the parties to the deficiency in penalties for the use nine hundred ninety eight in one nine hundred ninety nine and are you bound by those figures your honor once he had made the ruling banned by those figures were bound by those figures but your honor that's why we're here appealing his decision your honor as to rely on that and honor we agreed to that after he basically put us in a corner he basically he basically he said trying to wriggle out of it now we're saying he shouldn't have made that decision that he should have looked at the nature and character of the pursuant to the agreement of the parties in the above entitled case it is ordered and decided that the following statement shows the deficiencies in income tax and penalties you from the petitioner for the taxable years now you five hundred ninety nine inclusive without taking into now are you bound by those figures yes your honor subject to this appeal where we are arguing that the decision not to this appeal i don't i don't quite understand you were saying agree to the deficiency you can when you agree to the amount you can say would you with he should have decided something before he accepted our agreement is that what you're saying no your honor his october two thousand and ten opinion left basically no recourse that's basically a judge giving someone a subpart f income ordinary rates alter ego theory a capital gain rates it was well over fifty to one hundred million no matter which way you look at it you're honest and therefore we  set ok thank you rhonda basically your honor i'm not disputing that given his decision of october two thousand and ten that that's what the computation would have been were saying that his decision time so once you can only ask you did you file a motion seeking and in time mr anderson did not he was pro se in that matter and so we waited for you know after the decision to file the appeal with the third  agree that the taxpayers are bound by the stipulation enough final tax court order but also points out that the that final tax court order on the second page indicates that it is without prejudice to appeal the summary judgment decision so that's the scope of this  court's of the issues on appeal is the issues decided in the summary judgment so should there have been a determination whether this was chapter if income or not there was no need to make that determination there was going to be a trial in the subchapter f issue so that was not decided in the summ tax the tax court it again let me start again if if the tax court erred in concluding on summary judgment that this was that this golden apple income was taxable  if that was it around yes then the case might need to be remanded for a trial on the issue whether it was taxable to him in those years but i think the question of the method by the amount and the method by which it should be taxable has been resolved by that ok you know i'm not quite sure i understand it charlie where you're coming from i understood from the october two thousand and ten decision to judge the stocks and was going to determine the nature of the and a income because if it was capital gains versus chapter f that could make a difference in the amount is is that a correct understanding he would guess just trying to hold a trial on that issue and then he got the agreement of the parties to the above deficiencies without making that determination that's why it was that correct or should he still have made that when the right to appeal is preserved should he still have made that determination whether it's chapter he once that situation was put in then there was no need to decide whether what legal theory of taxation was initially so you're saying that that there was you were just talking about there was still going to be a trial on the chapter and they were after summary judgment there was still going to be a trial on the subject or at issue it was the issues that otherwise would have been resolved the trial that were resolved by the finest it was ok so you're talking about in pre market of two thousand and eleven there was going to be a trial are you saying that after the decision the agreement the stipulation there was no longer a need for a trial that's right i think i think you can view the appeal the same way you would view  preliminary an appeal from a preliminary sub summary judgment motion that wasn't final and couldn't be appealed and then there was a trial you could still look at the issues from that element are a summer job so why why was there no need for a trial to determine if the g n a ok but they still reserve the right to appeal they reserve the right to appeal the summary judgment rule ok so the so there's something that's that that that appeal is futile because they have stipulated to the amount and it doesn't make any difference no i don't think it's necessarily futile if if the court summary judgment ruling was also necessary to the decision set of this court how can somebody judgment on the other issues as opposed to the difference between whether it was attributable judgment on the basis of mr anderson's prior criminal case was of course the issue of fraud the tax court resolved that because mr anderson had pleaded to seventy two a one tax evasion and there are a large number of cases going back fifty years holding that seventy two hour one tax evasion the stops a taxpayer to deny civil fraud for the same tax years this court asked the government to provide supplemental briefing on the effect of callas shima on that those cases as we explained in our supplemental brief we believe that kalish him up with mentioned but did not dispute those cases does not have a significant effect on the cases because in those cases as in this case you have a plea to having made a taxes by me they did tax assessment of aiding taxes by evading assessment by means of filing a false return that's exactly what we have that's how mr anderson's criminal attorney described the charge to which he was trading guilty at his plea khalik way and there's never been any dispute that he here was attempting to evade taxes by filing a false return since that's what all of those cases address since tax court's decision on that seventy two a one issue should be a front fraud issue goes both to the fraud penalties and to the statute of limitations i just want to make two almost technical points about the statute of limitations yeah i asked you about yes after college and the commissioner still conviction under seventy two one then cow ashima does seem to cast doubt on the idea that that alone would be sufficient to a stop the taxpayer but if the record of conviction showed as the record of conviction shows here that the taxpayer had clearly admitted to as an element of the crime filing a false return with the intent to evade tax and to evade tax assessment then i believe that the tax court can continue to or civil subsequent civil case can continue to rely on that conviction to pay for it because all of the cases cited in our supplemental brief and our original brief holding that seventy two hour one stops the taxpayer are all based on the court's understanding that it's impossible to admit that you have willfully fired the false return with the intent to evade tax without also having admitted to fr penalty only applies to fraud but the statute of limitations applies to a false or fraudulent return so i don't think it's a clickable in this case but in some other case it might be possible that there be a false return and the statute of limitations would be extended without there being fraud yeah i verified can't imagine that you imagine well some people are convicted of filing false returns without being convicted of tax evasion often they get a one off and they admit they were trying to say an ex wife who's alimony but it's going to be based on the return and oh i knew the i r s would come and get it eventually so i wasn't trying to really trying to evade taxes but i knew it was a false return for false return is easier to proof than fraud especially to a criminal standard when man's whereas on the table so i understand that mr anderson was or is the largest invader it the other point i wanted to make this and this is really a narrow technical point about the statute of limitations is that section sixty five zero one c two which was cited in mr anderson supplemental brief does not apply to taxes under subtitle section sixty five zero one c two is not a political and i just wanted to make sure the court was aware that it has a much narrower scope for that reason than sixty five zero one one which is the statute of limitations that was at issue here you saved four minute one hundred million and say i'm not stuck with that i do you know it's just fun i mean it seems to me that when you make a statement to the board any court federal court that to get the part of the plea is a certain sentence for one hundred eight two hundred thirty five months you have to come up with a number just it's no different than drug cases and it was not determined it wasn't an essential element so the finding of guilt under section seventy two or one the amount of the car was the point is that he stood before the court i did this i read that i did this now should we just ignore the fact that you know isn't it isn't it really irrelevant too because in march of two thousand and eleven he agreed to the deficiencies in the penalties do now that was not in connection with sentencing that was in connection with this case but that one is an event but that that was strictly as a result of the decision of judge to sophos and in october two thousand and ten and only if we decided that that two thousand  october decision of judge to stop us and was correct that in affirming that don't go we accept without any problem these agreed to figure if if you were to uphold his decision of october two thousand and ten i guess that might false return he pled guilty of under section seventy two a one for tax evasion was the cow was shima as in cow shima versus holder that had the false return issue and i believe with all due respect that is not an essential element of us conviction under section seventy two or one of the internal revenue code and i believe counsel also agrees with that that the commissioner of internal revenue cannot rely on that soley in light of calif shima which reiterated the supreme court's decision in shorten versus the united states from one nine hundred thirty two which basically said fraud is not an essential element and therefore it is something that the trier of fact should consider and should not rule based on collateral finding that he was liable for civil tax royd without looking at the facts and you know that if we look at the facts here is he's really there pretty compelling what he admitted to to the deficiency to the fair fact that he didn't pay tax if he  he did sign that decision but he had never admitted to fraud in his plea colloquy and there is no evidence in the record that would indicate he filed any false return he never pled to that and there is no indication of finding that everybody in that case hear what i said as i watch it fall is not here ok so you understand this will be this is being