that it's actually very clear on what the statute of limitations is and it's not disputed that is you have to have a cause of action accrued and then the the concept got to know of the injury and that it was caused by complaint that those facts existed with respect to mr karr so we have alleged here are complaining the necessary elements for fraudulent concealment plane at this stage of the game under the respect to the investment strategy as a whole illinois is the place of the injury the place of the resident the place where the cock where they conduct occurred and under the bridge  l'alpe the choice of law can be separate apart from the contract you have to look at whether or not the port klang that pins on the contract relies on the contract or whether it can exist separately apart from the contract in our investment strategy and not to the confirmation agreements which only deal with the trades specific trade that were going to a specific date so we believe the law applies but even if you look at new york law we have execution of the digital option trades or the person trades on the specific date so it doesn't apply to the entire investment strategy and so to the extent the court would hold that the disclaimers do apply it only applies to these trades what they do is they they they say that there's these all these the irish i definitions regulations that talk about assessment and we haven't alleged it for the purposes of of a of a plane at this stage what what's clear is they don't have a case that says that this statue proposed exception what they're saying it all it says in the statute requires exception is that keith assessment once you get the sas but you get two years to prove it so that are complained of occurred nine ten years before the complaint was actually filed and i think i think it might make sense to scope back a little bit through the facts of this case just to make sure that we  well yes your honor the because the harm that is alleged in the complaint occurred in one thousand nine hundred ninety s and that was that was one of the things i wanted to make clear was that the allegation the complaint is that the that th accountants liability that is not what we're dealing with here in federated we have a policy that is clearly articulated federated repeatedly also by reference to the california case in federal standards where the court says that when you get an i o s notice of a proposed audit one of the first things you do is you pick up the phone and you call your accountant ok that is that is not at all what is going on  entirety and you ask the accountant please try to straighten this out that is what's going on in federate that's the policy there that is not what's happened here here the harm happened there relationship with deutsche bank was severed in two thousand and as you know from the complaint there are allegations of you know additional tax shelters done in two thousand and one that that which a bank had nothing to do with but the relationship was over ok so again the harm that that harm happened when he paid for them when he paid for the actual so that's why that's why i am hopeful that you agree with judge ford that that the harm happened at that time and then to the various items in again in the facts that deal with notes so first we have the results of the investment themselves the plaintiff here has made the allegation perhaps an alarm bell might have gone off saying hey what's happened that didn't turn out quite the way i planned then we have we have these public notices which in other states would be amply sufficient to give the plaintiff notice we have news articles that were presented to the courts below of relating to those tax shelters to the republic notices from the i r s and then of course we have the audit and then of course we have experience litigation council tax counsel being hired purpose of defending the the audit and and at that time judge ford said you know enough is enough that these plaintiffs at that point should have one or should have had enough information to do their diligence to find out that a fraud then commit inflicted upon them that's clearly what we have here argument on behalf of the plaintiffs and and i hope i've dealt with the discovery rule but on the concealment front i would say also that at there are no allegations of any specific concealment of any specific and see act of concealment the relationship again going back to what actually happened a relationship terminate at the end of two thousand and one thousand excuse me and at that point all the other information was available to these plaintiffs they hire a separate counsel and and again there was sufficient information out there that they could have looked into this this is not a conceal wish misrepresentation claims in part what we have here are conclusory allegations of you surely duty i mean the plaintiffs you know done the homework as to what facts there you see just how clearly it is that we can't have you share duty here in ransom you had a decades long relationship not to you have an exclusive exclusive distributorship relationship that's not at all what we have services to the actors acting c f o to to find potential buyers you have this tremendous intermeshed of relationships here and that is just not at all anything close to what we have here  the negligent misrepresentation claim which also requires a relationship between the parties we also have a non reliance language in the documents which a lot of time was spent on that but  the cards made that decision and went on a five year litigation ban against the i r s they willingly allowed the claims against torture to come stale and the end when dealing with the consequences that's what happened was  happened to her which is that the cons invested in the tax shelter participated in several tax shelters and in two thousand and two when video sidemen was served with summonses seeking the names of all of its clients who participated in those tax shelters the cons and others were notified that their names were being sought i believe they were there were john doe and jane grow judge for below relied on the including that the writing was on the wall at least as early as two thousand and three i believe it was on the wall a lot sooner than that a lot earlier than the notice of deficiency which not what i would argue triggered the notes to the cons the cons were notified that the i r s was taking the position that the very tax shelters they had entered entered into were abusive and illegal and at that point they were ten i believe they retained highly reputable tax counsel who would have alerted them to the facts not only that the i r s had was taking this position but that that position was based on notice one thousand nine hundred fifty nine notice two thousand deaths forty four those are the very notices that plaintiff's complaint alleges put us my client david parse on notice that these were illegal tax shelters so and mr deery said that the basic premise of their allegation is that they knew that we notice that that had happened it is not in two thousand and eight when after five years of battling with the i r s the i r s finally when it is at least in two thousand and two but they but there are but their names are being sought and audits are inevitable and in fact and i think that what the trial court below did was give every benefit of the doubt to the cause by concluding that in may of two thousand and three when they when the cons hired counsel to deal with their notice of deficiency and deal with their audits that that that's just that's it they were clearly on applicable not only because there is it relates to a special bright line rule in accounting cases where the allegation is negligence in the preparation of tax returns that's not the claim against david purse is not a claim against  these are all the allegations and at the point that the cons have reason to know that whatever alleged representations were made to them about the  that those were probably not true they had the statue of limitations and russian police started running up that way and to hold otherwise would it and i there are other cases floating out there of these late comers where the taxpayers have spent years years going up and down the tax courts the district courts the appellate courts trying to obtain the favorable tax treatment that they simply can't have it both ways they can't argue on the one hand the i r s for five years this was a legitimate investment it's a legitimate tax position i am taking i should be permitted to keep my tax losses and then when they fail on that front come back and argue that they should be allowed to pursue claims against torture bank and david parse because it's not when whether they win or lose and i there were well i don't know that that's really worked if if the concert was so on the strategy because according to your argument you say it's a reasonable for them to think anything else other than they were dealing with probes either by the time they first got notice of an  shelters wouldn't work and wouldn't fly with the i r s were these i r s notices it's not that it's not that the allegation is not that david perth's didn't know at the time  where the allegation is to the contrary that he did know and that him this really represented that fact to them and the question is at what point should they know and it's the same if it's the same information that gave notice to my clients which are these very early notices that would have put him or at the very least his very reputable tax counts i mean it could it could be that these things were fine right but in that case argued that there's no basis to conclude that david pearse would have known that they weren't fine there but the allegations fly in the face of arguing that they couldn't know until the final notice of deficiency because the allegations that these are the notices and we knew about these notices so we knew that this was a project antakshari that they are aware of that as well when they hired tax counsel in may of two thousand and three who represented envy in the effort to keep their names from going to the i r s they sought to conceal their names from the i r s for a very long time and it's different statute of limitations the court agreed that for purposes of determining the a cruel of the statute of limitations the analysis is the same contrary to appellants arguments made  faced with a motion to dismiss first action of limitations their own complaint sends out multiple injuries and resulting damages some of which accrued before the i r s issued its notice of deficiency in two thousand and eight and is not alternately dependent on the determination of liability according to a powerless complaint the coin strategy was fraudulent and they were injured when the investment certain that when they entered into the coin strategy with the expectation of gaining a benefit and paid substantial fees in connection with that benefit according to their complaint allegation one twenty example appellants also claimed as injury and damage the loss of a remedy in late two thousand and one two thousand and two being not able to participate in the i r s tax amnesty program and that's a paragraph there really isn't a one size fits all when it comes to when you're going outside of your just street old negligent pants preparation case here that's what the trial  therefore were the injury occurred according to their own complaint back at the time of the investment and here we have by two thousand and three we are multiple i r s public notices  have the articles in the press we have bomb lawsuits feeling grow out and it's clear the clock is running and they did not bring the case within two years and therefore it's time barred under the statute of limitations that governs with regard to accountants i want to just briefly address the subdivision the repos orsen of the statute sandstone this case falls within subdivision eight there was injury and there was a trigger well within the proposed period and they didn't bring the cause of action it's gone this case is gone so the repos period actually doesn't even matter for the analysis of this case it doesn't make sense where here you have the injury and you have the trigger is somehow in terms of the repos period which is meant to be a cut off when you aren't aware of injury and the trigger so really you really don't need to look to the host period at all if that court were to somehow conclude that it doesn't agree with the injury and trigger analysis determination it's like it's where you have a judgment it's a lean what they have the right in their complaint i will go throw around the word assess if you look at paragraph two away the timing on a notice of deficiency a notice of deficiency is not an assassin it's a preliminary determination it is not the final determination and what happened when we argued this before the trial court in specific response to argument and if you look at page twenty one o the knowledge that you aren't in an assessment situation so therefore the exception doesn't apply they have the burden of proof on the exception to the stacks of repose they did not bring anything forward on that and not mack brown sol so there would be no basis to reverse the district court finally with regard to that those tax returns we're talking about we're talking thermosphere there is nothing in the record with regard to any assessment against thermosphere which is the only tax return they ran short of care and so we ask that this court on the record has specifically we asked the court to go back and look at the complaint look at how it's a lagged in terms of the the claim that there is this massive had at the time that the injury occurred at that time running throughout all the complaint is the idea that there were these excessive fees charged for this investment back is w claiming as damage that occurs in two thousand one hundred curse at the time the investments made and so therefore we're not looking at anything like a federated situation or any other of the cases that have come before the court involving in countenance because we're not talking about the street you know this is a negligent preparation of a tax return that we don't want to put the accountant and the client it's well this is going on here they're alleging that the accountant was in bed with the rest of the participants in this project and scheme and so we don't even have the policy  all the elements act to be present you have the negligent act you have the great cause damage what the said was is just because you have a negligent act does it mean that says the discovery rule can start when the cards knew all this bad conduct was going on the fact of the matter is there are three cases on point and if you took everything that assessment what they're claiming is an assessment ploughs in the face of federated it flies in the face of lax wall dictionary on assessment it plows in the face of the i r s website and so what they're basically saying his is that you need to assume that the legislature amid all this technical stuff when they said when a point when a taxpayer is assessed taxes that's our the statute