morning your honor said robbins on the lawyer for the taxpayers this case is about the taxpayer's right to a fair trial a tax court we maintained he fair trial but they did miss chen had nothing to do with with after the criminal proceeding after the criminal proceeding she had lots to do with coming up and with the numbers and that the numbers not that i mean she's the one that she's the one that came up with the original numbers and correct just tell me after the criminal trial and after the criminal matter not trial but the criminal proceedings it was all agreed that there was a diff they owe taxes and they agreed to a fraudulent penalty and what not but then mounts had to be determined yes correct yes ok and goes back to the i r s yes and somebody makes that determination the determination had previously been made in the context of the criminal case no no no not not just  just who after it went back after the criminal proceeding and they came up with the new amount who did the numbers on the deficiency came from ultimately helen chan  ok she was building off of a fairly substantial effort that predated her and yet when the case right there was a lot went into the criminal prosecution ok but she came up with the numbers that were in that deficiency of the numbers on the notice deficiency were put on there by helen chance so i thought when she testified that what was happening was that she was relating how she went about coming up with that those numbers that was what the was yes but if you look at the record that is not what she did when i say that when you say the story you talk about the argument i'm your in the money motion yes as well as the arguments made by the government  somebody had to explain to tax court judge how they came up with with the numbers no they don't in that context is that with the net worth number of numbers on the deficiency notice yes and they could prevail yes news to me no it's the way it works but here they elected to rebut what we put on with their own data but let me get back to my original point this is i'm going to hit this because this is important helen chan went way beyond talking about what she did to come up with the numbers on the deficiency noticed and we can see it we've got the proof right here in the record keep in mind i hope everyone has caught this that the government's theme is all she did was talk about what she did to come up with the numbers on the notice of deficiency that was it nothing else not true true that's the way the tax judge related but  helen chance deficiency number from one nine hundred ninety eight sixty four thousand dollars she changed it during the course of time after the notice of deficient strength she kept grinding the well that's the those arguments are particularly related to you know whether whether or not delbert was violated right those arguments show that she is operating as an expert during her trial testimony but what he's saying is there were they would have been permissible she were qualified that's absolutely all right if you say that then and she wasn't qualified you have to show prejudice that well i ho by shown that in the prejudice is what the prejudice is seen when you look at what happens in a typical tax court case if i may give thirty seconds summary i thought the pose would be she's not qualified you know the prejudice is the taxpayer is the pride of a series of him very important procedural things that he could take advantage of to help him in his case just like any other case with an expert absolute word yes that procedural that's my point that's the whole point of this case i know that but that the point i'm getting at for that was while i did so don't have to show prejudice from that violation so i think the prejudice is manifest by the by the fact that we did going to the qualifications of shown well when you depose them you go not only to qualifications you go to the substance of their analysis we did not have an opportunity a pretrial opportunity to depose that expert on the substance of her analysis we did not have an opportunity to get a written report which is huge tax court is unique in that regard as far as i know and that and that the respect   within thirty days of trial and most importantly it becomes the direct testimony of the expert it just goes in bone that's direct testimony in the taxpayer gets an opportunity to cross or if the taxpayer puts the expert and substance i would assume had she been forced to write every pore it would have tracked what she alternately said so yes but now obviously you had an opportunity to cross examine but i suppose court there's discovery i mean did you get her working papers before we had all the paper had all her papers so you knew what she'd i didn't know what she was going to say no no no but you had her records and the way she did when she worked up the be an expert is a summary well you knew she was going to be testifying i'd had no no reason to think you should have done the numbers i had no reason to think they would go back on their word and there's nothing i wonder did you have to get the tax court judge's approval to take her deposition what i have had to i could done in my stipulation you can do it it's not a big deal is the government usually cooperate no matter but there's no reason to do it she's not an expert why do i want to talk to her she's not a witness she has no historical connection that you know that all caller is a witness yeah they said they're going to cause a summary witness a one thousand and six summary witness which she clearly was not i soon at a certain point maybe before she was in color early in her testimony you you you made some kind of objection right away yes sir ok now what was the response nuisance objecting at least periodically because it was totally improper as far as i was concerned i'm entitled to the rules being followed we didn't get it and i want to i can beat this case in a fair fight when i was shot at  court hearing directly from the commissioner of internal revenue as is obvious in this case frank worth pled guilty to intentionally under reporting his single you don't have to go into that we want to know you did this dispute opinion i'm sorry to have i think did that turn out to be true that the tech court judge did not permit this witness to testify to any opinions whenever during her testimony legitimate objection that she was straying into opinion territory that pat's court reminded her and basically that the the critical thing to understand here is that there's a different though the answer is than say yes or not she did not she explained what she did and the tax court can take it or leave it the tax court is itself an expert on tax law and the distinction between a criminal tax prosecution and the deficiencies proceeding in the tax court is that specialized knowledge which is the category of testimony referred to again section seven a one for of the federal rules for lay testimony so you cannot thing than specialized knowledge and the specialized tax court where the judges themselves have specialized knowledge and judge lab or there's credentials around packable they're available publicly on the  its website he knows very well the difference between the criminal rules and the civil tax rolls because he was the tax assistant to the solicitor general of the united states and in the tax court judges have been reversed on occasion but by my point is that the baseline for specialized knowledge in the task court is way above the heads of a the civil jury and when here he admitted the revenue agents testimony purely to explain what she did not for the truth not for an expert opinion on whether the methodology was correct but just presented the information so that method was appropriate that's all within the province of the the tax court to the son she presented her asked him at and the task or can take it or leave it task or can accept the taxpayer's number or the commissioner's number or come up with something in between but he says you could have just presented your case by offering the notice of deficiency and and rested that right i think that would be a risky litigation s the commissioner has to present something because of that specialized burden of production and in this case when the commissioner had to put yet to present some evidence to show that you were relying on the net worth than that it was a proper this was a proper case to rely on the net worth method in the blank missioners you the tax court may disagree right but that was your position that's how you calculated the deficiency and you said we did that because this is an un report there mean is that is a net worth method reflected on the deficiency notice not on its face but all of the information the spreadsheets the summaries the foundational documents were provided at least a year and a half possibly two years in advance of the time now there were specific tax payer to relax parents representative and he found a status report in july of two thousand and eleven which is more than two years before the trial indicated that he had received a huge requires the parties to it's sort of a settlement procedure to get together and figure out what they can agree on and then to narrow the issue so that only they legitimately just speeded items  postponed but just her name was on the witness list is that what you're saying nothing else about  worth position or not yes that that was revealed that she would be the representative of the commissioner to explain the deficiency number  that so it's possible maybe the taxpayer was never informed that this witness would be testifying to the commissioners network calculations and bottom line i can tell you generally what happens when there's a deficiency determination and then to send out there's an administrative procedure that can be followed where the taxpayer are faced represented by counsel the taxpayer is representative can communicate directly with the revenue agent to at that level try to resolve the issues and then there are then that the case could go to the i r s office of the peals which is another sort of settlement resolution opportunity and then the task or trial is sort of the the taxpayers put up or shut up moment to present his own evidence because all of this evidence you have to remember is within his personal knowledge well they don't know the evidence you know how the commissioner gets to the net worth calculation is not within the taxpayers worth but obviously you can come up with a different number i stand corrected your honor the tax payer's person has personal knowledge of his actual income during the period and what happens is the tax court is taxpayer told about you know the commission it was net worth calculations before you get into court all of those spreadsheets which show the allocation show the treatment of everything were produced  yes there are there is no surprise spreadsheets presented at the trial and that's produced a profit hole long before trial in this case possibly as long as two years before this trial definitely within about a year and a half before and are those disclosed figures you know substantially what that what this expert testified to in court trial yes and where there were changes there were some minor changes which which were identified at the very beginning of the trial and all of the changes were based on refinements from is an i r s employee who was a slow motion just a revenue agent that which is yes she's a revenue agent but she had no other job description while she had i mean that her job description is and the record at the beginning of her testimony but what her role was in this particular case was she was assigned after the conclusion of the criminal case and there was a plea agreement in which frank worth agreed to cooperate with the i r s and the civil examination of his tax liabilities not to challenge the evidence gathered in the criminal investigation not to challenge its use in that civil investigation she was assigned at that point to do the math for the commissioner we had it and mission that the returns were incorrect that income from white sands was not reported accurately and frank worth was on notice at that time that a similar civil exam is proceeding what's not in the record in this case in the civil area is what happened between so the thirty day letter period which is a notice the taxpayer that even precedes the notice of deficiency that alerts the taxpayer that this is coming and it's an opportunity that sort of resolve things before you even get the notice of deficiency point and then what she did was very straightforward there are no numbers to add up i was it will fall on very easily all right thank you thank you didn't just sit there and say there was nothing we wheeled up two hundred thousand secondly beam there was a question from one of your honor's about whether any of the objections were were sustained i can't remember a single one if it was it was collateral it wasn't what we're talking about here they were all over the the net worth from that well i guess we're past that i think you've got to be an expert to do a net worth math and i'm sorry there's nobody in this room that can do one without special training i can't even do it i've been working on this stuff for thirty eight year the revenue agents are received at special train sure you know they know how to do yeah that helen chant could do it if she were here that's because she's an expert and net worth it doesn't necessarily mean she's always an expert when she's testifying she is in this case i think that's pretty apparent the question is what she wasn't they didn't follow the procedures that there was any prejudice here because apparently she had all the  prejudice comes from not being able well first of all they represented to us to answer again one of the questions they were there the government represented to us that she was not testifying as an expert that was quite clear you've heard that again right here she's not an expert don't worry about it ok that's a big deal as a huge deal and so i didn't know she non experts want what she going to do put in some reschedules no problem i probably i was deprived of the identity of the substance of her testimony i was deprived of her identified as an expert i was deprived of the opportunity to depose her as an expert but most importantly i didn't get my hands on her written report which was her direct testimony i would have their direct testimony a minimum of thirty days before trial imagine how useful that would be have thirty days to prepare your cross examination have thirty days and look have your own exit you know i don't i don't hear you saying is that i would have hired my own expert based on all of this on my own expert would have done this this and this absolutely if i'm faced with an expert right now but you haven't said that at all you have you say you say well i would have done i would have had the availability of her deposition i would have been a lot happier report i'm saying now but you don't so you've never said we've been i've been listening to you very carefully are all morning you've never said well i'm going to go out i would have gone out and taken that information i would have gone out and i would have hired my own expert my own expert would have said this this and this about her test i would i don't know specifically whether i would have done that because i haven't seen we haven't said haven't seen her report but have all seen having seen her report i may well have done that clearly that's one of the reasons you want to see the report now if a report so lame i could rip it up on my own i would need to do that mr robinson the man who related question oh i don't want my question is is it customary in a net worth case for the government to french a written report on the net worth case of their revenue agent then what if it's not customary why is that they i can't answer that you know because it's too much trouble and they get away with it well it this must have been raised before i mean this just me to your point