just on this case and i'm not sure who's who on this but we have a we've got two appeals going on here i'm going to suggest well i'm not going to suggest i'm going to tell the parties that you each have twenty minutes mean counsel are you counsel for this that mr hawkins ok then when you get respond to the commissioner's appeal and then make your statement on you have your own refund and  and so then you can make your opening statement on that and then when the commissioner gets back you can respond to the refund and then do your if you want to save a short amount of time for rebuttal on whatever thing you would have brief rebuttal on your refund but it's twenty minutes total so that's there in lies the dilemma for the math ok but that way we can keep them straight as far as that goes so the commissioners that i turn in for commissioner is appealing jurisdiction scope of review in the merits and i thought it would take them in that order unless anyone at the court has another preference i think that would be kind so first one jurisdiction  circumstances where there is a description see anyway because he is classic innocent spouse relief where you didn't know or have reason to know that the return understated the liability and so a deficiency determination sort of interference in that and  butler there was a decision there was a deficiency and there was an election under subsection b one so the reasoning that if the tax what may have been too broad but the result in that case was all right then in the fernandez case no deficiencies so that the petition was really standing alone in that sense but at least there was an election under b and c now since that time congress went back to the statute and added language that there must be an individual against whom the preparatory language and then it goes on that in addition to any other remedy that individual the individual may petition so we think that it's clear that the prefatory language you know an individual deficiency election under b and c still applies to the home to the jurisdiction and that modifies the actual language about beliefs being available under the section we think it's still talking about the individual in the prefatory l but even if that were in big us we have answers for the parts of the legislative history on which the tax court relied the committee reports on the original statute the house report so anyway so that really the concept that there would be this new kind of relief for people who flunked expanded or separate liability really just came up in  non deficiency jurisdiction getting back to judge to seem as concerned about the word determine similarity of the word determined in section sixty fifteen e and provisions that speak to the commissioner's discretion the commissioner's discretion over accounting matters in section four forty six inventories for seventy one allocations between related tax payers for section forty two and bad extensions and the only thing that doesn't that doesn't fall within that is the jurisdiction under section sixty four of court to review interest abatement so that's another discretionary provision and we agree with  of any deficiency proceeding should be like this on the record before the commissioner and it's really ok to do that because it's two different exercises one is is it on the other is to the commissioner properly exercise well if she could probably get review under section sixty three thirty the collection due process provisions because and that's in advance of collection before the commissioner can levy has to give that he has to give the taxpayer a hearing and that statute you're looking to direction in this area you know it's it's an important issue and it would be you know win or lose i think that it's important for for the commissioner to be able to and taxpayers to know how these proceedings should be conducted what i just have a very short time i wanted to make one more point about the record review and that is that the checks work majority started the fact that within six months after an election a person can go to court to contest the denial of the relief and even if the commissioner doesn't make his determination and we think that the best approach is for the court to remand that to the commissioner to to do to make a determination but even if the court were to go ahead and do and and decide at least in that instance if you were doing trial they know it wouldn't be  tax court should not have overridden the commissioner's discretion it's created new factors and the most important thing is that overrode the commissioner's determination that this lady well afford the tax and she knew when she signs of the turn that the tax wasn't being paid and that her husband didn't have the money to pay it at this point so it unless you have any questions i'll save the remaining time  positions opposite to the one that they took in the ewing matter to decide exactly what they wanted to say and how they wanted to say it and as a matter of fact it took the justice department to tell the internal revenue service with a position that's going to be over and over again curative legislation it requires that we look at the legislative history and see what congress really intended if the plain meaning is that odds with that legislative history then i think that we have to make some modifications to how we are interpreting what we see i think it's particularly interesting that if you think back to the original statute the sixty thirteen east at u t it had no explicit grant of jurisdiction in it to the tax court because the presumption was that it would be raised in deficiency proceedings and a normal sixty two thirteen deficiency statute would provide the established tori grant that makes a big fuss about deficiencies because the new statute should have the same deficiency hawk sixty two thirteen as the old statute sixty thirteen etihad well i guess though if it's in two thousand one congress added the language in the case of an individual against him a deficiency has been asserted to twenty six u s c six fifteen eastern what's the purpose of this language if it does not mean that it and official must wait for the commissioner to assert a deficiency before seeking review i mean because obviously there are some rules of statutory construction that we can't whether it's surpluses or whatever  well i think that judge really does a very fine job of making that analysis to if you look at the legislative history there is there are clear statements being made that because of the way the statute started out being ambiguous there were premature requests for relief being being interposed mostly in dissolution situations where family lawyers were afraid that they weren't making the right request at the right time and the service was being inundated with these requests where they hadn't even begun an examin so i think that judge ruiz reading in that regard is the correct one and and and the accurate one that congress was attempting to make two points that had that did not go to restricting the court's jurisdiction the points being that at the very least the service had to be thinking they are asserting additional income tax against someone and in the second instance a non requesting spouse could not just come forward and it don't i need to make that determination but i can't tell from the plain language what it means well that i think you have other conflicting pieces of the statute that help you with that and i think i i think it is more fact that that that congress and the internal revenue service to letter which had already promulgated regulations on this point had so that they didn't want to talk to anybody at a minimum and still a deficiency had been raised but if i could just finish my point about the prior statute because essentially if you have sixty fifteen without would still have deficiency jurisdiction maybe it is a meaningless statement except for adding the definer of the time frames within which people can ask but the point that congress made in both of the legislative history both the house and the senate was both the inadequacy of sixty thirteen and the desire for congress to see that that the tax court had jurisdiction over any request for relief under sixteen so if you look at it that way if there's been and and the time frame say that anybody can ask for relief within two years after collection begins the outer limit was there in the original statute as it was written but once you get through i did see and once a deficiency has actually been assessed there really isn't any difference between  we can't be so narrow in our determine a or in our view of the word use of the word deficiency in sixty fifteen i realize that in many places in the internal revenue code it's intended to be a term of art but in this to it appears to be conceded that the tax court reviews for abuse have just crashed and so why isn't the tax court limited to reviewing the administrative record and if the administrative record is not isn't adequate why isn't a re appropriate for that court to develop a more complete record i think that's sort of what they raise their ok i you know i would call the court's attention to a fairly recent tax court case it's may of zero five called friday versus commissioner which was in direct response it's one twenty fourth t c it's number thirteen i'm sorry i actually tried to find it yesterday it hasn't been officially published so it's just there thirteenth decision and is in direct response to a revenue procedure that was promulgated by the service two thousand and four dash twenty six in which the service effectively said that to its lawyers don't go forward and ask for summary judgment anymore as long as you ing is we can reconsider and in friday that's exactly what happened the government asked for a summary get a motion to be dismissed and asked for the case to be remitted in and that case judge gerber rejected the concept  sixteen and i think this is where everybody is getting very confused sixteen is not sixty three thirty sixty fifteen is a statute which gives the court the opportunity to grant relief and to give relief it doesn't ask the court to what the commissioner has decided and that language in sixteen easy is very clear so judge gerber took the position and it said t c reported to opinion that there was no remain and opportunity in sixty fifteen why someone came into the determine that the court has jurisdiction sixty fifteen after i seriously question whether the reduce the scope of review should be of use of discretion i think that in the early days of these two statutes that everybody the  court the service and maybe even some of us privately practicing were trying to squeeze both sixty three thirty and sixty fifteen procedures into the same round hole and except one of them was the square peg sixty three thirty specifically calls for the court's review when there is an unpaid liability and the collection methodology is in dispute calls for an abuse of discretion review it's right in the legislative history when there is a liability question in play it calls for discretion review but in retrospect as i study the statute and i look at it at the struggles that everybody has if this court if that if the tax what really has jurisdiction over asked then i think it has far broader than that and that there was in fact the existence of some refund determinations as well as other kinds of oversight so i think it's an incorrect reading of the a p a to say that it exempted only the tax court's deficiency proceedings that's not what it did it exempted all proceedings before the tax authorities and i think for the most part they did that is judge thought for an alludes because there was an internal revenue code of the structure of the internal revenue code over which for the most part the tax court has done noble review of all of the facts that holds a trial i know other point that you have to keep in mind with these  service and the statute so they are the regulations say that in order to be in order to obtain relief for an unpaid liability the taxpayer has to demonstrate that it was reasonable for the mental processes that goes just someone's belief it goes to someone's credibility i don't know how a tax court reviews the commissioner's determination about someone's beliefs and credibility without at least putting them on the stand and hearing what they have can i say just a brief we'll spend your time any way you want it will be gone when it's gone so well i want to say just a couple things about relief i don't believe if you read the record and you read the opinion this decision about grant was not based on new evidence as a matter of fact the new evidence that's you cited in the record which doesn't appear to really come into play was all introduced by the government and it was not introduced by the taxpayer per subsequent wage earnings or purchase of a home the values of her i rose that what's in the bank account all of that is supposed february nineteenth ninety nine when the commissioner made its jitter i'm sorry two thousand and one when the commissioner made it determination and it's certainly post one thousand nine hundred ninety six when she is signing retire our return with a liability on it for which she she has not enough money to pay and you have a copy in a record at her checkbook register that shows  about fifty bucks left by the time she paid that thousand and sixty nine dollars so this is not new evidence the trial court got to hear real people present the existing evidence and there's some serious questions about whether the entire record was there i think we've briefed that enough you know our papers that i don't need to say too much about that but i think that's a serious danger in this area your honor you asked a question about whether mr ewing would be able to go to tax court in any other way if she didn't have i really need to correct the commissioner on its surface superficially it looks like she would have a collection due process opportunity under sixty three thirty if they began collection action against her but in fact if you read the regulations that the government of sixty fifteen apply and none of the provisions of sixty three thirty provide apply so what the government is not telling you is that as soon as ms ewing's collection activity began and she would raise her sixty three thirty opportunity they would shout no jurisdiction under f and f controls because it's a sixty fifty in case we don't care what sixty three thirty says so effectively if the tax court has no jurisdiction in the way that we've argued in our briefs these mostly low income tax payers are never going to get to the tax court and for the most part they're never going to get to any other court because most of them don't have the money to full pay the liability in question in and in and in any kind of a way to be able to get to the court or if they do the period of time is so long by the time make a full day so they can do a claim for refund and get to the federal district courts they don't get any of the money back because the timeframes have run so that their requests don't fall is the commissioner makes a big deal about the fact that nothing in the form eight five seven says i'm claiming a refund i think the case law is pretty clear on this taxpayers make informal refund claims in many many different ways and the commissioner is deemed to have understood that if there's enough language the attachment to the eighty eight fifty seven explicitly shows what her tax liability would have been and i had she filed separately and shows that she would have been entitled to a refund i think that constitutes a refund claim and that was submitted within the three year timeframe provided under sixty five eleven so i actually think or talk to her refund claim is timely and the  issue of whether or not she really made the claim i think is is just a red herring i would point out however that it's a pyrrhic victory under f to get a refund after the service has collected it all if you're not entitled to get some of it back and that's kind of the equity issue i think all right thank you one reason for that is that the tax court's jurisdiction to determine various things are you know purely statutory its deficiency jurisdiction to redetermine deficiencies under section sixty two thirteen got jurisdiction to determine new matter additional to further deficiencies fund and additions to tax under section sixty two fourteen and even has the determination i mean the jurisdiction to  make a fine it's just incidental refund jurisdiction isn't sixty five twelve so i think all these things really have to have meaning second about judge  don't have that at my fingertips i don't know exactly what it says but i believe and my contacts in the irish national office also believe that this really would be reviewable dollars and i doubt many people obvious get frustrated when they judy allows credit a refund to be made but it expressly incorporates section sixty five eleven which is the time we refund claim rule and the time for filing one would have expired three years after the return was filed which would be april fifteenth one nine hundred ninety nine the taxpayer contends that her election which was filed in january of one nine hundred ninety nine so you know would work as an informal refund claim but when you look at her election what you see that she's doing is that she's establishing that she paid tax on her share of the reef of the of the couple's income and she actually had to do that to satisfy a threshold  mean if it wasn't attributable to him that the understatement underpayment wasn't attributable to him she wouldn't be entitled to do that at all and she didn't even ask for a refund so much talk and the argument that well  did informal claim yes but and so i'm focusing on why her election is not and inform when we find claim she never asked for a refund all she's demonstrating is that the under payment is was attributable to him and that's something that she had to establish for innocent spouse relief so the i r s wasn't put on notice that she was asking for a refund and one peculiar thing is that this separate liability election which you know she was trying too if she if you entertain the conceit that she's trying to get back more than she anything that she paid which is more than what she would have paid if she'd filed singly congress allowed in subsection  but it's only for under statements it's not for under payments and it's also only where the person seeking relief didn't know of the understatement and so it doesn't apply where for a particular tax it's not a question of whether the taxpayer could actually pay it and i think that's where a lot of the analyses and in this arena kind of go a the issue is should the economic unit of the family for some reason be disregarded because of other events that have occurred a spouse has been misleading it was his item go longer married whatever the circumstances are  should there be released granted because the traditional economic unit that has filed a joint return which by the way i don't do is a privilege has it has fallen apart for some reason too often  someone should be granted relief or not and i i just i don't see that that's the kind of statute this is this is a relief statute is not a collection statute or a collection determination statute that's what sixty thirty is all about the ability to pay shouldn't have really been factored in as what you're saying well it's a factor two thousand and fifteen says and the judge called and did not create new factors he interpreted two thousand and fifteen as the government has written which it does it is a non exclusive list of factors to be taken into consideration but it is not the only considerations that can be taken and i call the court's attention to sixty three thirty yes sixty fifteen sorry eat three which is a specifically identified as a limitation on the tax court's jurisdiction if they wanted to limit the court's jurisdiction they should have done it with reference to deficiencies and und payments there and they do know all right thank you i think we have your arguments well in mind thank you both for your arguments in this matter this matter will now stands have netted the court it's going to take a brief recess of five minutes and then we'll resume