and within that context the interpretation of what's called the take out statute as we been referring through it it's section fifty three six point two dash eleven of the north dakota centric court code at the bankruptcy court level the judge took the view that that statute did apply to account wagering and he found out of course during that period of time the account wagering was subject to taxation in doing so i think you made a little bit of a misunderstanding regarding account wagering versus simulcast wagering and maybe i better back up if you get to this point is that in one nine hundred eighty seven at that time the north wagering was a game of chance but under the statute and the constitutional provision which is article eleven section three it allows games of chance if the entire net proceeds go to a charity or essentially a public spirit or organization and so with the this in mind in one nine hundred eighty seven the north korea legislature passed what's called a live live track race meet conditional for more people go to live race meets and place wagers and in conjunction with that they formulated what's called the take out statute again it provides how the proceeds from the the wagering pool are to be distributed and then in one thousand nine hundred eighty nine the legislature also approved what's called off track betting which would be statute and put that language in through the statute so at that time they referred to each live each date of live race meet we're simulcast date so from that time going forward thousand and one and legislation was passed to enable an authorized account wagering as a for another form of paramita a wagering and account wagering is a little bit different in that a person makes a deposit of money with say a service provider then uses that money to make their  wagers and from and from which they are paid it i think the bankruptcy court made the mistake of thinking that those were synonymous that simulcasts wagering and account wagering were one of the same whereas sometimes it's hard to understand the sanction but they're not but nevertheless in two thousand and one when the count wagering was authorized the takeout statute  so in other words in the past they've done the take and they blew the taxation language in the connection but here they did so why why is that not a good stat tory interpretation  exceptions and we believe the exception applies in this instance and it goes back to judge hill's application even though he made a mistake in construing that simulcasts be account wagering he did go back and rely on the absurd doctrine which is also recognized by the north dakota supreme court it states that you  know the plain language rule applies in lessers an ambiguity which is not an ambiguity or are not absurd result applied resolves and that's what we believe happens in this instance because you argue there's an ambiguity here i don't see that there's an ambiguity i think maybe there was an ambiguity within the context of a confusion between the simulcast wagering and the count wagering you know i think there was a general misunderstanding between the two even going back you know that's different that just misinterpreted it but the language i don't i can't make a strong argument for ambiguity i think it's absurd he was specially within the contacts of the constitutional limitation on games of chance under twenty percent of the wagering pool and then three percent of that goes to the to the state for taxes then later on net proceeds to the charity so that comes out of what's a doctor that under subsection one so unless you have that in place you may have account wagering authorize but you can't implement in at all i mean if you're if you don't have take out the take out statute applied into account wagering you don't have any authority for the licensee to withhold any money there's nothing that can come of love loan payment to the state little loan payment to the charity the licensee can't even retain any money and even more so there's  within there in that statute that says the remainder which is the eighty percent is paid to the better so unless the take out sachin applies that account wagering nothing comes in and nothing goes out so under p w e s argument yes the state would not get the three percent but even p w he would not have any authority t erickson makes the comment he did cite anything to it that probably maybe the law i don't know but he said the north dakota constitution may not be provided for with may not provide for implied we can't you're asking us to imply taxes and if they don't get a constitution has been interpreted to say we don't apply dax's than well that may cut you off but that statement is in his opinion but i didn't say they already said it right i recognize that and i think i read that and i believe that he came up with a statement relying on the canada construction that was stated in the google versus gould decision goes back to the eight hundred forty two were girls worth of sedition that talks about if a statute is ambiguous or doubtful it's construed in favor of the the taxpayer and you can't impose taxes by implication but that's a can in the construction i think th also bolstered by relying on the the constitutional provision under article tand section three that says every tax has to be made in by in pursuance of law which i understand to be is there has to be a legislature to authorize ation and then it continues to say and it shall distinctly state the object of the tax well our position is yes that may be the case but once we imply the the account wagering tax then it does distinctly state the object so we're going we're trying to address wagering because they didn't they didn't pick up a vision wasn't applicable therefore wasn't the goodness and money to charities or to the better correct your honor if they had recognized that before this lawsuit was commenced then they would wonderful rewards because within this context you have to understand we're not dealing with thousands of taxpayers we're dealing with the state at one end of the team maker's a charitable organization we're dealing with  authority to a tax account wagering until two thousand and seven judge erickson correctly found that when peter b enterprises was engaged in account wagering through r s i there was neither legislative action directed the collection of and you also heard him say here today the state admits that the take out statute was amended at the same time that account wagering was created in two thousand and one but they did not create a tax on account wagering the reason because we're not talking about the charity here we're talking about taxes and the status come along and said well yes but the charity might not have gotten any money all the wagering would still need to be conducted through the charity all the wagering was conducted through the charit there was a whole nother structure dealing with it yes we are talking about all of the money i think they probably did do it as if there was a take up state or they just didn't pay the taxes go ahead it's a hypothetical we're not dealing with go ahead no no i understand your honor that they've that they've raised this issue about the charity and i think the distinction here is that one that we're not talking about any mon allegedly owed to the charity the charity is not a party here we're strictly talking about taxes so it is purely hypothetical and there is an argument that horseracing is not necessarily a game of chance underneath the constitution because it is set along with things like this skiing responsibilities act so it's not entirely clear but the important thing is here we're talking about taxes what's important about judge eriksson's opinion is that it's got multiple parts that were missing from this tax when you don't have third very important thing to this case you're missing an amount and method of collection of attacks so the state has asked that a tax be implied in order for tax to be implied there must not only be an implication of the tax full five million dollars was not all for account wagering and so it's just a matter of setting the amount we agree that we're here on a dispute of law as to whether or not a tax existed and that dispute of law govern the no i don't believe it would be your honor and what was well what this way or what words were missing from the statute in question that should have been included the statute in question doesn't in any way cover account wagering so in order to have a tax on it how many words would it take nickels and dimes for you know i disagree your honor because the setting forth the amount and collection of the tax is a requirement it's a constitutional requirement under the north dakota constitution that's exactly what happened was w is what they cite too there is a different footnote in that very same section that says that there are still courts that are applying the law against the government when it's a tax law you construe it against the government and in favor of the taxpayer and those courts that are still doing it are state courts and in fact north dakota is one of those so here here in north dakota which is the law that applies you still need to construe it if it's a tax provision that ambiguous you have to can screw extrude against the government of the taxpayer but that's assuming we get to the ambiguity which would imply that there's a statute to begin with so as to be a statute to begin with which is missing here and then if it's ambiguous then you imply it in favor of the taxpayer and against how you get to the legislative history your honor i believe that you only get to an absurd result if you can show there's ambiguity and the cases that deal with that and do mention an absurd result you have to get the ambiguity first and and in the cases that go to the absurd result there has to be clear legislative intent tax if this court is inclined to look at the legislative history and we get to that point then in addition to looking at the legislative history the court has to also look at all the circumstances surrounding the amendment of account wagering and in this case there's a few important facts to consider first each prior time the legislature added a new form of wagering they made a similar  in two thousand and one when the legislature added the count wagering as a form of wagering they changed the takeout statute but not too many count wagering so they were already in there tinkering with the statute didn't make that change the legislature then had two additional times where they changed the take out statute and neither time they had a count wagering in two thousand and three and in two thousand and five it wasn't until two thousand and seven that they added a count wagering and at that time they said it had a different tax rate than the other forms of wagering next there is a statement of legislative intent that the state has actually filed in this case it's a one sentence legislative intent so on page sixty seven of their opening brief and it does not include any reference to tax or revenue it just says that they're going to set up account wagering and third there's still would be no amount for account wagering there's nothing in the legislative history that  just to apply the tax but you have to go and create some sort of an amount there's also the notice issue for a taxpayer for tax payer wanted to know what they were taxed for account wagering there'd be nothing at this time frame prior to two thousand and seven that they could look up and figure out how much they were going to be charged or have any notice of the charge or the amount or any of those things and that's why i courts don't allow out particularly in stack tax statutes to go beyond the it says this statement does not mean any ambiguous of course are talking about ambiguous statute this statement does not mean any ambiguous statement must be strictly script construed against the case and will be a last a case in this situation and the court when i say we conclude that the rule of constrict construction of an ambiguous tax in favor of taxpayer is a rule of a last resort when other means of ascertaining the legislature's intense have failed and the stay believes that when the court looks at the legislative history which mr sanderson has referred to the bill see that the intent was that this would