thank you very much the next case is bush versus the united  i'd like to first start out with a general observation if this dismissal under seventy four twenty two h in this properly apply that decision that is the ground that were cited here we're not arguing to the court should reach evaluate whether or not the partnerships transactions were  plainly clearly and explicitly arguing that there was no tax motivated determination in the controlling opinion the controlling opinion in this case gets a little complex because sustain the f bomb and fall the government came in and asked for alternative adjustments that were not consistent with the law and you also have the underlying prior order by the court that the partners in the in the dylan partnership and the other denver partnerships would in fact be subject to the decision in crowds so we really have here is a final dismissal in this case that applies that fire prior  the government has made basically the same argument expanding pratting indian way beyond what they did in the irvine case in the southern district of texas the court in that case ruled in our favor of this issue read the case you'll see that the court in every instance determined that there had been a prior t m t determination and that therefore our only claim could be to seek review termination determination here there has been no such determination in fact this case is exactly what the keener case specifically sent keener was not there's a quote in the case and i can't recite it exactly but it sr to keep jurisdiction open then in the instance of a tax motivated transaction yes for certain types of claims you cannot come back and seek a new determination of what the partnership level transaction was or what its nature was you cannot come back and seek to overturn a prior terminations of that but is in any instance where you are going to another court to that judgment and see if it does with the party is alleging if the court alone reaches the tax motivated transaction determination is or won't we be defeating the purpose of having one partnership level proceeding and those are not because again if you were going back in addressing whether or not there was a tax code of a transaction yes it would be but that is not what the court is being asked to look at it's being asked simply look at that judicial proceeding and see if there was a t m t determination and if there was not then the government's imposition is completely wrong it's inappropriate that  website comes up in the second part we talk about three or statute but there's i mean the search one stretching limitations but dropping to that for just a second to make this point that is is equally relevant there because the six is the language where the commissioner has erroneous we computed any kind of positional adjustment it doesn't say any rooney is computational just an assessment is says where the commissioner has erroneous lee compute that relates to for the first time became subject to that six month century in ninety seven when they included claims that the commissioner had a roni asli imposed a computational adjustment the government would have us read out the term erroneous lee computed from sixty six to thirty c one c or c one that which says defines the type of claim that that subject to that statute as a africa one is simply the thousand dollar threshold issue whether or not the the understatement of tax exceeded a thousand dollars a hand and they specifically she specifically says a man and  the language in duffy was was directly adopted by the fifth circuit so this is really a fifth circuit opinion says and whether or not a t m t determination had been made and that is exactly as a very compelling precedent because it directly addresses these issues and there is no directly compelling authority in federal circuit on the issue of the interpretation of cross i think you look there at that film versus focus on the ninth circuit versus fifth circuit and i think the fifth circuit analysis an argument is extremely compelling it's correct the fifth circuit says that you can't apply only three at the partnership level begin with and it makes that analysis by relying on both both contain languages that reads as follows any need duction disallowed for any period under section one under section one of the story relating to the negativity engaged in but an individual already has for to i think it's absolutely clear and the circuit that seventy four twenty two age fires are quite a federal plans from issuing refunds attributable to partnerships and i must there's no t m t don't you have to look and whether the partnership transaction the tax motivated i don't think you know they've got up and i thought the status of the partner whether the partnership transaction was tacked motivated is quintessentially a partnership level determination whether that determination was made question whether that was made if it was if you are questioning the underlying partnership level determination that the partnership level issue so looking at the question was proud correctly decided  partnership level issue that is now closed it's too late to look at the question was crowded correctly decide and that's the date the court of federal claims was refusing to do here refusing to go under the  final partnership level determination and consider something that would have said how do you determine if the refund is a partnership i without checking into the tax motivated transaction status involved in a tax motivated transaction but whether that partnership is involved and tax motivated transaction was a question for the partnership level seems to me like you've got to to at least take a look at both right not you have to least look to see if there's a tax motivated transaction determination was made at the partnership level and could not be challenged in the partner level that's the point i'm trying to m what i see the court doing is looking in saying i see in this case a partnership i'm not even going to check any further and see if there's a tax motivated transaction is that is that correct it seems to me it's wrong it seems to me it refused to make even the superficial check for the t m t that's necessary to determine if you've got the court if correct that whether a c m c determination was made is a partnership or it might nevertheless have jurisdiction under seventy four twenty two h through the sixty two but it is absolutely correct that this is a partnership i don't and that it cannot look to the merits of the partnership and since argument the arguments the taxpayers and making here are about the merits of credit whether crowds was correctly decided whether how how should be interpreted recourse recently said kraus didn't make a t m t determination can we look at that relevant here as precedent or even persuasive authority it's relevant here as part of the history of the case crouse didn't make it t m t determination why don't we look and see because klaus is a partnership level proceeding on the partnership level proceeding is now clo they're not part of the procedural history of that  case seems like such a simple matter and i don't seem to be been communicating with you why don't we just have the court take a look and see if there's a t m t here that is it's almost a question of in order to do you've always got jurisdiction to determine if you've got jurisdiction so you've got to look and see if you've got jurisdiction the way you do that in this instance is that reached a different conclusion the night than the ninth and tenth circuit cases the you're talking about we just want to look i think it's important again to draw the distinction looking to see if there was a chance he's terminations in the tax court proceeding does not mean looking to subsequently decided cases that are not part of that procedural test look for that t s p determination that sounds to me like you're saying what i'm saying right in that case but the other point i would like to make is that the sajid actually survived for that you don't get it and i'm reading that the the trial court to not have done that well we have therefore have air i have made a superficial determination that skirted their obligation to at least see if they've got jurisdiction but i don't under determination i don't believe i don't believe so either isn't that fair this court could affirm that at the last on the record as we are given our brief and also on the second issue that we raised in our grade which is that to look at whether there was a c m t determination we could do the trial court's job for them and make a determination ourself as to whether there was a t m determination or we could ask them to go back and correct their now are we still communicating yes i think that's ok thank you the second argument we made in our brief was that the statute actually provides and that this goes a little bit but we're just talking about type about always having jurisdiction to determine your own jurisdiction we don't need to fall back on that principle here because section seventy four twenty  actually has an exception for claims brought pursuant to sixty two thirty c and sixty two thirty c provides mechanisms for taxpayers to challenge the way that the i r s applies the partnership level determination to the individual partner so that it can be you can conclude that a partnership level determination that a particular decision is a partnership level determination in fact i think the question of whether a d m p determination with me must be a partnership level issue is a partnership item that applies equally to all partners but of course you can go through the sixty to thirty c exception to seventy four twenty two h in order for an individual partner to challenge that issue in a  and shouldn't be similar i'm saying that copeland is not relevant here because it's not part of the history of the case at issue it's also not a tap or a case it involves a pretext for years and forty five forty nine but as the decision and dumping reasons as well more than two years after the taxpayer obviously had actual motive because they thought the amount of the interest of self interest sixty six  thank you thank you mr read things that the government has designated a regulation or work group really determined for the partnerships taxable year at the partnership level that certainly does not apply to what the court did thirty thirty twenty years later on this type of claim doesn't fit under the kind that are precluded by seventy four twenty two a chance of one make that or you move are clear i would also like to disabuse the school misrepresentations in the government's brief and in this presentation just now about the f l there is no determination of a sixty six twenty one c in position or of an of  t set out in the f pot even if you look beyond behind the cross determination the employers are in the administrative record i invite you to review them carefully if they say nothing about imposing sixty six test for period individual limited matters in case something didn't own clear to me even today is how it even came before the court if you review the first two pages of the cross opinion on the second page it discusses the issues to be involved in the case and it talks about the hildebrand's who are individual petitioners at the individual partner level and it talks about the off i believe that somehow that case originally even involved a step notice to the individual partner mr kraft that was a part of that case and i think it's worthy to note that on the final page it was an issue in craps really were mr kraus individually and mr hildebrand individually it's not in the f r it's not a partnership level issue being determined in crouch believe it or not i didn't actually tumble to that until last night of the a but i asked the court to look at that second page of the cross opinion again we're not arguing about the merits of the cross determination we're saying crass did not determine we're not challenging we're not asking the court to read redo craps we're asking you to interpret  withdraw the appeal and go back and try to get another judge to agree with them to then make the spring the appeal of its lesson the judge informed shopping i don't know what has this case was decided by one