know that's what i mean so the government's assessment would then be presumptively correct at that point unlike the later years where you're arguing that the notice of the p c the lack of the notice of the right would be fatal to those claims while i understand that you did not or a plaintiff in this case i should say did not object to the magistrate judge's recommendation or i should say a summary judgment in favor of the ex wife rebecca thor later he and me to interrupt your train of thought but on the notice of deficiency issues just so i understand with respect to that is sure we're talking only about the years two thousand and five to two thousand and nine there's something different about the provides an exception so assuming here that they were living in a community state they care they lived apart they didn't and the income that was being received was attributed to mr pradelle so under those circumstances it was his in home not her was the section sixty six argument that you're making here was not raised  that it's been referred to that they live together i think in their brief they cite to page eleven twenty seven of the record but there his ex wife merely stated that taxpayer quote there on occasion so you know he may have showed up just to see the kids who knows why but it appeared that you know they were living in oklahoma  not texas and to the extent he refers to later events of the government piling suit in texas i mean we filed suit in two thousand and sixteen so where or he was looking at two thousand and sixteen isn't relevant the district court agreed with those conclusions and that mr belford didn't come forward with competent non concludes are very substantive evidence to show that  they reside together the fact of the matter is the district court or key to the magistrate issued it said it was not a material issue it was not briefed it was not issued it's a material issue of fact that's simply what my client is asking for that he has his day in court here from the government that he was wealthy these are going all issues of fact in dispute the other day twenty six million you have to earn you know almost a million a year to get to that number it's staggering  has been overruled the made no decision was overruled is the first i heard that style is there is a sign three i'm not aware of that your honor is but at the end of day it was it in decision it doesn't necessarily matter because there is no per se rule in the circuit as i stated earlier mccallum is far more on point in that case there was an audit and an assessment just like this case my client did not file the returns you heard that from the government the government must audit and the government must make an assessment that's not of this view but there's a second part it's a fine distinction that someone like me as a tax attorney appreciates that you have to send the bill you heard the example the amazon if the ship if the shipment shows up but there's no bill you have to issue the bill that this court has repeatedly stated it's a two part test that's what we look to the well says is it really lays it all well but going back to progress footnote fourteen footnote eighteen this court cites to an earlier decision of mccarthy i don't think this court has ever said that to form forty three stories alone are sufficient evidence to prevail under summary judgment for this two part stand when there is a deficiency that's not beholden in parades respectfully it in fact is another site here it says as a general rule and i'm reading from peru as the i r s may not assess or collect a taxpayer's deficiency unless it sends the requisite notices deficiencies undisputed there's no deficiencies for the latter years there's nothing in the average or heard about the hearsay testimony of a revenue officer revenue officer is not an agent an agent is the one who makes the assessments that does the audit he officer collect debt what the government is talking about is that someone went and looked in the records and claimed that everything was done but that's not sufficient for summary judgment your honour's my client should be entitled to his should be entitled to refute the testimony to refute the evidence we think he has absolute done that he's not reliant on his self serving affidavit he's presented sufficient evidence and with that you're honest i'll close on this as any other questions for