the questions presented this morning are first whether accounting negligence is to be treated differently from all other forms or fashions of professional negligence and most specifically whether the accounting statute of limitations is to be construed and applied differently from every other statute of limitations the circuit court's holding in this case is to the effect that both of those questions are answered yes and that the defendant accountants in this case have argued explicitly but without the full idea of principled rationale that both of those questions must be answered in the affirmative your honor's new case has held that such differences prevail all cases are confirms a consistent approach to the elements of professional negligence and the accrual of claims of professional negligence and to the activation and running of the applicable statutes of limitations the elements of professional negligence so well established and are cited in numerous cases first of all professional relationship giving rise to a duty of care a breach of the duty of care causation the reasons are not of record in the case i want to make that clear but but the fact is that from the time this tax assessment was paid by these plaintiffs until right up until the time this case was filed there was there was a tremendous desire to try to preserve this relationship which was not a professional relationship but went back many years to try to preserve that to try to resolve this without resort to a public must be present for a claim to accrue for it to mature claim cannot be brought or if it is broad and subject to dismissal if all the elements are not present in that list includes the element of injury or  session limitations begins to run when the person knows reasonably should know of his injury and also who knows or reasonably should know that the injury was wrongfully  indicates that it is necessary for both elements to be present both usury knowledge of injury and knowledge of wrongful causation now the circuit court referring to the particular statute of limitations in this case relied on the absence of the mention in the statutory language of the word bill sure the word damages and from that the circuit court reached the conclusion that the elderly to injury or damages was not necessary to activate the running of the statute of limitations but case that have include the supreme court's decision in county of du page which construed not the accountant statute of limitations but a statute of limitations that in it's the way it's written is a verb believe almost those cases of course relate to the question of a cruel when does a clinging for professional now practice connected with a tax matter accrue when all of the elements present and  fedderson both of which are out of california i took away the this the standard which is entirely consistent with federal law that a claim does not accrue until there has been a determination by the tax court it's the same as a judgment in the matter in the underlying matter where you are there's been a finalized settlement of the tax controversy that the case in illinois that stands for the assessment of the deficiency the notice of the deficiency is in the tax world really the functional equivalent of a complaint or perhaps a demand letter even priest complaint what is entirely consistent with how federal law looks at such moments that there is no finale there is no determination of the tax assessment until the tax court rules because there is a  judgment until there is a seven until it's otherwise disposed of by agreement and even the matter of settlement is not a question of whether people are talking about settlement whether a proposal has been made about settlement we say in  this case that that the matter could not have become final and the claim could not have accrued before may seventeenth that was may seventeenth that my client's payments were transmitted to the i r s but indeed it may not have been assuming as may seventeenth that that the cause of action the crew because federal law and federal regulations provide that the that  matter is not final until the i r s formally accepts the ten paid and that again this is not a record in this case but that it did not occur until several days after we're not certain of the precise date several days after the settlement amount of the assessment was tendered to the ira it's a federal role was pretty clear about that california noted that  in determining what what its bright line test would be and the bright line that was adopted by the california courts is consistent with what this court decided and bronstein there cannot be a claim no claim cruise until that underlying tax matter has been adjudicated now you're wrong as the circuit court was aware of bronstein and rigged grounds but but frankly misunderstood what attorney malpractise case construing the attorney now practice statute of limitations there is nothing about statute of limitations in bronstein whatsoever the case does not and never did involve statute of suit against the accountants banks it was against his lawyer that's exactly correct your honor but the elements of professional malpractise as this court and other courts in illinois have held are the same there is no difference the four elements are the same a professional relationship a breach of the duty of arising within that relationship causation and damages those elements are the same regardless of whether it's accountant malpractise lawyer malpractise or other kinds of malpractise the language admittedly the language in the statutes of limitations are different not the elements of the claim and as to the elements of the crew of a claim against an accountant before the statute of limitations begins to run it would be inconsistent we maintain with every other decision to so hol i worried about the ten cork s which is an account malpractise case in which the statute of limitations was deemed to have run prior to the filing of the case the accountant damages need not be determined fully and finally for the statute of limitations to begin to run and so the circuit cour knowing whether you're in for a diamond ring for a dollar is not at all with this case this case is about the certainty of injury and bronstein teaches us federal law teaches us the california cases teach us that there is no you should until the underlying tax controversy has been finally adjudicated or otherwise finally resolved the discovery rule as the court said in mc baldwin doesn't applause where there is no injury to discover and this case presents circumstances where although it was admitted really clear that fear was a problem with my client's tax returns and there was a problem with respect to the professional work that had been performed or not performed by these accounts but when that problem would mature into a claim whether we're right put into a claim whether it whether the usury resulting from circuit court in this case on the motion for reconsideration misperceived the relevant authorities and misconstrue the statute of limitations this court reads the cases for what they say and construes the statute as it has been construed in other accountant cases and in other similar case good morning again julie to share on behalf of the defendants there's been very little talk about the language of the statute issue here plaintiffs have avoided talking about they have for obvious reasons the statutory language that's involved here in thirteen to one four point two is playing in unambiguous and the law in illinois when you're dealing with the interpretation of a statute is that the most reliable indicator of the legislators intent is the language of the statute itself and if that language is plain and clear the statute should be given a fact without resorting to other aides understated facts here april of two thousand and five plaintiffs know that the i r s disagrees with the defendant's calculation of their passive investment income december of two thousand and five plaintiffs unanimously consents to the proposal by the i o asked to adjust their tax liability all of the plaintiffs consented as of december of two thousand and five to the adjustments proposed  s now that means they knew about them they knew that it resulted from the passive income calculation rendered by the defendants and they knew they were going to be injured undisputed facts  check to the united states treasury may twelfth two thousand and six in the amount of approximately one hundred forty thousand dollars undisputed that check was written to pay the tax on the passive income that was miscalculated we rely on the day in court case heavily because it's an opinion in this district that deals with the issue at hand when does the cause of the action accrue under the terms of the accounting now back to statute of limitations in th file their action against their accountants for failing to detect the embezzlement this just court said it's unreasonable to say that they had enough information to file a thirty five page rico c embezzlers and that they didn't know that their accountants had missed all of this information and the plaintiffs in dakor tried just the argument being made by plaintiffs here plaintiffs and day in court said well wait a minute if you're going to buy a portion of our damages you can't buy it all we didn't know about two million dollars worth of these damages in october of one nine hundred ninety you can't buy that claim in the appellate court said that's not the test and this is the language they use injured i don't think that they knew to the extent they didn't know the dollar amount the specific dollar amount no different than here plaintiffs knew they were injured before be more than two years before they filed this accounting malpractise case but they make it clear that the mere fact that damages are not ascertainable does not postpone the triggering of the statute of limitations and that's key here because federated in plaintiff's argument is not only does it have to be  has to be fully known it has to be fully foreclosed you have to have a determination by a tax court or a final settlement setting the amount and that's completely irreconcilable with the language and ban illinois supreme court has also addressed the issue as to when a cause of action accrues in terms of knowing your damages and the illinois supreme court clarified by saying that they had never suggested that a plaintiff has to know the full extent of their injuries before a statute of limitations is triggered if that were the law the illinois supreme court said that would circumvent the legislature's intent to promote the prompt resolution  we have here we have eight plaintiffs was a represented plaintiff by the way has attorney has counsel as of october of two thousand and five with a power of attorney to deal with the internal revenue service on their behalf they've got counsel december of two thousand and five with counsel they unanimously consent to the proposal offered by the i r s that's knowledge and it would have been with the cooperation and input received from your client that you're right yes they were return they had to sue sometime within two years of the time when they were notified and exactly what time the pendency of the so there are two years from the time to get the letter the note that the iraqi notification iris disagrees with what  their records are i think what you want i think clearly and i think it could have been before this but i think clearly when they give the unanimous consent to the proposed adjustment by the i r s they know that they're paying a penalty and additional taxes as a result of an alleged miscalculation on their income tax returns they know that at that point they can't give unanimous consent without knowing it so i say at a minimum from december of zero five the two year statute of limitations began running which would have c baldwin i don't think i need to get around it i don't think that i position in this case is inconsistent with m c baldwin m c baldwin is very fact specific and yes it stands for the proposition that you have to suffer an injury and his decision there was based upon the fact that there was a question of fact as to whether plaintiffs had a restitution claim defendant said you paid us for services we didn't perform therefore you had a restitution claim against us defendant said no we performed the services that you paid us for you don't know with any money you don't have a restitution claim so the court found there was a question of fact if there was no restitution claim then there was no injury until their client's last down so mc bargain is very limited to its facts and it certainly doesn't stand for the proposition that no injury is sustained in a tax liability case until the tax court says your money or until there's a final settlement well in october they hired attorneys and some people might say that that's an injury and they certainly had to pay for those attorneys in december they unanimously consent to the proposed adjustment which meant they have to pay taxes and know they knew they were injured when they wrote that check on may twelfth two thousand and six and to suggest otherwise is it just defies reality but it's also can be for we're not here to save people we're just not especially for him accountants and lawyers and  game of when you can be sued because prior to that you shouldn't be sued you know injury which is a good thing i think for accountants you can still represent their clients before their arrest and after that day the clock is ticking you have sister clients and your i notice you that is not the law in illinois and that's not with the legislature has declared to be the law with respect to the running of the statute of limitations and here again we have an unambiguous statute and in our l if they had chosen to although i'll remind the court these plaintiffs didn't need protection they knew in two thousand and six they chose to wait until two thousand and eight they had many options available to them they could have entered a tolling agreement never dead they didn't need a tolling agreement they still had months and years to file their accounting malpractise action before they did this and this is an election that they made they were represented this isn't an unknowing would you keep would you keep your client if they file suit with it and it doesn't make any sense to you foresee a circumstance where if they file suit in the summer of zero five against your clients that they should retain your clients for the where your particular accountants have a lot of specific information that they could help you in work or dispute with the i r s or for you but you see me if i can imagine circumstances in and i can't and frankly that's not the issue appeal and they're very unhappy and that's why they're here and so then we have to say not just what should occur here to federated and right isn't but to all companies everywhere within the state of illinois from this day forward here's the law and i see just one of the things we should look at consider accounting malpractise case the plaintiffs only know that there's an actor a mission that's been committed resulting in an injury and there's no dispute here that all of those facts were present more than two years before this action was file but that's an attorney malpractise case as you pointed out just going in that's significant because the law with respect to attorney not practice is unique there's no others setting where you have to have either a judgment against you or an ad for settlement  to file your cause of action that's unique to attorney malpractise and that's why that's a that's an important distinction but doesn't talk about statute of limitations issues at all it simply says your case isn't right because this is a legal malpractise action and there's been no judgment entered adversely to you that's significant that's apples and oranges nothing else is like attorney malpractise in the state of illinois and i think it's telling that their reply that they're relying on attorney malpractise cases in opportunities that it started to run i think that december of zero five is the big one when they unanimously consent there's no dispute about that there's no factual dispute at all here which is knights they unanimously consent to the fact that they're going to pay the proposed to justice by the i r s that's knowledge that's knowledge of an injury and that's knowledge of an actor omission so at a minimum i say it runs from december of zero five and then we've got the five is when the i r s notified plaintiffs that their taxes were being that their tax returns were being examined on the specific issue of passive investment income miscalculation so they knew even the earlier of a potential right that's not the test the test is knowledge of an act or a mission giving rise to an injury it it doesn't mean you have to have the i r s is premature on it the i r s saying it was an act or a mission the test is when do you have sufficient information to put you on notice that you have to investigate your claim that's the purpose behind the statute of limitations the legislature wants to promote the prompt resolution of claims they think you know nancy yeah i'm sorry  that's absolutely possible if you get a notification from the i r s that your tax return is being examined because of miscalculations by your accountant you were on notice at a minimum of a possible act or mission we have more than the out here we don't have notice of a possible act or a mission we have noticed of an actor or mission we have noticed of penalties of taxation of interest all more than two years before they filed this accounting malpractise claim let me take a look at my notes here  base if you accept plaintiff's argument in this case the thirteen to fourteen day is meaningless thirteen to fourteen point a means nothing if you twelfth two thousand and six there is no dispute of fact about that they elected to wait until may of two thousand and eight to file this accounting malpractise action despite the fact that they were represented by counsel despite the fact that they knew the consequences of the alleged miscalculation committed by the defendants they waited the trial court got it right here in the motion to reconsider and i would guess that this court affirmed the trial court's order dismissing the case with in construing a substantially identical statute i supreme court found that the activation of the statute of limitation that which starts at  is when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully cause that's in county of the page county of to page construing the construction statute of limitations which like the accountancy statute of limitations has not specifically referred to injury or damages the courts in dealing with the situations presented in this case have found that it is necessary to read into the statute by implication that essential element otherwise the statute of limitation is is either grossly unfair or meanings indeed if you were to read that the accountancy statute of limitations literally ruled by word it will require a taxpayer to bring suit something they're informed of the circumstances of it but the way what is this something that their taxes were wrong that the they have to would have to pay a lot more money than they did that there's been an error in their taxes they are green with the ara's you know that was i cannot think of a principled reason why in this context accountant no practice in the training of practice should be any different otherwise you do have this question of where the question that the court has asked this morning when windows the statute begin to run in negotiation with the i r s when has it been made sufficiently certain that you can say you know i have a your client's liability maybe he'll or what what the scope of a resolution might involve but it doesn't happen it's not a fact i just say just on the on the point of the of the check which i've really it's a question of fact but i think the facts are clear the check was written the settlement was anticipated it was not transmitted until may the seventeenth it could not have been as a matter of law any finality with the i r s before may seventeenth when that check was