and i was also counsel at the trial court level for plaything your honors the ruling of the district court depends entirely on its interpretation of spite of the case law indicating that a voluntary taxpayer and it may be designated in writing by the taxpayer to any likability any liability the government argues and the district court adopted the notion that this regulation is an exception and that at the time that this occurred the taxpayer could not designate to any liability i e in this case a payroll tax period even though on our side requirement was we deposit several times during a quarter we for some reason all of a sudden are only allowed to refer to tax quarters and not tax periods without we do not i think there's a mountain suspenders argument  made on the other side and i think attempted by the district court and that is even if you were allowed to designate you didn't doesn't what indication was they are coming to payments as to how you wish to have those payments  i frankly your honor if you cannot understand our argument when i look at the checks themselves are you telling us that those little notifications on the bottom of the checks function is designations that is the standard manner in which the i r s receives these kinds of exhibits three approximately half way to two thirds of the way through the exhibit is our exhibits in support of our summary judgment motions in opposition for their first and the checks are  circumstances and the context in which this was done there's only one way to interpret what that's supposed to mean how do we know that this is the standard way this is done and this is accepted by the i r s well your honor that is is just something that people know i don't have any evidence of that people know me to it and we supposed to take judicial knowledge of this i mean just me as an unusually strange way to try to make a designations writing something on the bottom of the check well that the government certainly has not pointed out a stranger honor and they haven't said it should have been a letter attached or on a three by five part attached or a poster i don't know how else you do it your honor this and i'm saying that only one of experience representing this is you're never going to let this happen again i mean i know i wasn't around when i did i know i mean this is there are a lot of other ways to do i think just write something on the mind of the track understood my point though your honor is that dealing with the evidence at hand is sufficient as a matter of law based on the i r s his own procedures and the supreme court  case is a particularly interesting situation where we've started everything from the supreme court in the ninth circuit down and the government likes to stick to the fifth circuit and i think we know that there are some differences in the way some of these things are crossed in the two circuits but the fact is that the language of the case law that we've cited is clearly met by the designations on these tracks poor at a minimum there is a genuine issue world but sufficient and clearly meaningful in the context that under the circumstances they're not payments with a return normally that's how you designate how you want your payment to be applied you submit it with the returns for that period the iris knows how to apply it it's a different situation i don't like to point out that  provision which requires you make deposits into depository bank and there has never been there was never any right to designate those payments to the i r s a faded how it would apply the penalty first and this was a remedial statute it was an act in order to prevent what had happened in so many cases is that employment taxes which are withheld from the employee's pay simply disappear and so your getting out of getting them out of the employer's hands in the periods an issue in this ca the government does apply checks deposit on the return designated on the return that accompanies them that is true with taxpayer says but these are not tax payments they are deposits of funds that don't belong to the employer but to the government and they aren't accompanied by a return and therefore this case i'll give you some examples exhibit one page one fifty three you'll see that there are three separate payments due in that we in the week of what is numbered fifteen through twelve there are three that at one point that energy indicated all of the checks and all of the employment records do not submitted in this case then they prevented us from doing a complete reconstruction in this case but it one point they indicated they had been told by several people that they could not designate their deposits in effect they were given good advice hundred five the united states supreme court issued a ruling that said in part when a taxpayer makes a voluntary tax payment it can direct that payment to be applied to a particular tax liability rather than to there's no other place to put it as was pointed out earlier there's no standard form there's no practice were writing a letter we filled out the coupons of course we did they go to the i rest of the basic problem is according to the district court there was no law until  the case of  knockout graphics i'm sorry the case of united states versus energy resources company the specific language in that case says that that language doesn't do us any good and so we know where the cases line up right and i come up with i was actually i was going to point out that in that case it wisely chapter eleven case in which the bankruptcy court was attempting to designate how the payments would be made and in that case it was determined again that because it's a voluntary payment the bankruptcy court can water the payments apply certain way and so if the courts question is do we have a case that's exactly on all fours the answer honestly is that you want to knock out their rank right the for back is that no your honor we don't because it's a novel argument that i've never been able to find the government making before but what we do know is that we all make our payroll tax the posits to a bank your honor always have everybody payment your honor the regulations and the case to say that the painting must be designated we took the payment we designated it and we send it where we were required to send it there's no other regulation opinion chase or anything that tells us to do it any different that's the problem or the government can now stand back and say oh no you have to jump through those hoops and cross that but we wouldn't have known it at the time my time's up your hours and was there additional questions w