under the contract or an american disagreed and demanded full payment no withholding or it would gene the gilberts in breach of their contract and forfeit any right or interest in the property nd the guards learned that america had caused multiple federal s the dealers found themselves in in really no untenable position on the one hand they could comply with their statutory withholding obligations under asked for and they can withhold announce from payments that were due to mack one or the agreement but then they'd be placed in those particular releases were the latter that your honor has mentioned in a vacuum devoid of any factual context and i can i can certainly would like to expand on now but your honor to turn back to interest your st question what is it the gilbert want your honor they want to be able to comply with their federal obligations to us hold statutorily prescribed amounts without being held responsible either personally from the federal government or be deemed to be in breach of their agreement and deemed to be waived for had their interest under the contract and with respect to the liens when his case was originally filed there were multiple federal tax liens on the property which precluded the gilberts from the benefit when they bargained the ability to get that property free and clear and while the issue you have the liens again not something that's properly before or today and been certainly requires more factual development is the court's inclined to consider and may have altered the status was respect to whether there are any needs on the property at the end of the day when the gilberts filed their complaint those wrong there and there they can continue to proceed on their claims for damages attorney's fees and costs and expenses that they've been heard in connection with having to file that now proceed on appeal and your honour's answer your question not really but you're telling me you really can't answer it because it's not in the record in front of the district court and with respect to their federal withholding obligations now back on the one hand his claim that the gilberts can withhold it but i question what they want are they there are they still interested in the property or the interest in a lawsuit for recovery of the cost of an associated with this address the issue of the releases because i think it's an important one for the court you appreciate how it factors into those rights so the government and i have taken the position that leans on a property were released after  after his appeal was filed i don't think that that's something that this court has center based on the limited hell of record in front of it nor is it something that the court can consider divorce in any additional factual content and so let me just give the court an example it's very possible that there may still be federal tax liens on the property recorded were otherwise we don't know that your honor absence and burl are factual development which is appropriately and of itself but withholding occurs before there is any determination of whether there is a tax owed and before the tax assessment period so it's sort of the initial procedural status and the actual tax assessment liability reality what the government when what the gilberts are concerned with did the end of the day is facing potential exposure both from the back up under the contract and from the federal government with respect to bowling well the courts when they want in the inner player actions to be able to take those funds with them with the board and then have a space where they can say now we're free from responsibility either with respect to our own polling obligations or with respect to the government and really the inner plater is the only way in which we deal with the resolution of disputes between taxpayers and the government and the government's proposed solution was simply for the gilberts to deposit the monies with the governor and then a whole the not going to come later on and see refund but that's an issue with the cord and then the court could decide should we stay this action pending resolution of a separate administrative proceeding between america and the government over whether or not there is or isn't a tax that should be a that liability as the court might also be able to construct another avenue where it enabled those funds to be specifically transferred over to the government to be held and dealt with addressing his absence of the ten issues so your hon cord fighting over the withholding obligation in the st place and if as the korg at that point you would have a tax bill or some sort of demand from the federal government and the procedural posture would be t well i think a procedural posture would would potentially be different your honor but i don't think that it would it would it would provide another alternative i think at the end of the day we'd be back to the very same position we are now which is what the gilberts want to do i have to withhold dante when i have to with well we think we do they're saying i don't i want to be in a position where our clients don't have to face this simultaneous exposure losing their right an interest in this property versus potentially running afoul  ron thank you may please the court i already told you who i am you know i think there's a a lot of issues that have been raised in the brief but they all end up hitting similar brick walls and  the st one i'd like to discuss is the movement of the claim which the panel brought up almost immediately when they said you know what is what are the gilbert one well the legal have been released and as you noticed in the  supplemental record we did offer to allow them to close this transaction without any type of penalty so that was available and it makes it hard to understand what the gilberts actually do want because i think that i mean you honed in on that immediately judge lester that you know it's more like they're just pursuing these in costs at this point rather than actually expressing their interest in continuing to buy this home because you know they were afforded the opportunity to do so without any penalty without any issue of f f withholding and with the tax liens having been confirmed to have been removed company told well obviously ron i'd prefer to have the case and the appeal denied at this point without a remand yes you understand our position but i think the movement is something that the court that issue was premature and they were asking for an advisory opinion from the court in reality and that's why they posture of this as an inner pleader and declaratory relief is that their posture was we don't know whether or not we need to be doing this withholding we want the court to tell us what the respective rights are of the parties so that we can proceed with this contract with a threatening to hold us in breach and i heard the strong talk about well what was our alternative here there were several alternatives one of which is you know if you look at the facts in the elements of some of these claims particularly breach of contract and quiet title they h performed yet and you know they kind of jump the gun and say well you know you bridge this contract and we're entitled to quiet title to the contract even though we haven't purported yet and i think they really did jump the gun what did was that hey we need to do this withholding but they never said we're going to take that money and we're going to pay it to the iraq which they could do you know when i pay my employees i don't keep that money in my pocket ok let me stop you right there if they us the same thing they said well we're not going to be able to determine this because we said you're in brief you didn't pay we need to get you out of the house they called off the thing thing they told you don't have jurisdiction we're not going to answer that that was so i'm i'm says there's no come complete diversity you do not need complete diversity for diversity jurisdiction in or pleader and further i think there's at least a plausible enough federal question here that there is jurisdiction i have no difficulty about the subject matters diction issue the issue that i perfectly content if the district court were simply to say that they either do or do not owe the money then rather than just leaving the amount all they're interested in is who do i pay so why is that not a proper dinner  on before this money that collected before there is a determination on liability and assessment and collection of this tax we want to have a declaratory relief we want to have a judicial opinion about whether or not we have this obligation and whether or not it excuses our performance from to this conference so i think even under one thousand three hundred and thirty one they're going to run into a couple of different barriers as they proceed because i think your point there is a federal question when you say how does this federal app impact my rights of this conference but it doesn't take too long far down the analysis before you run into some other roadblocks in th they have no if they have no remedy because in every every suggestion they've made you say doesn't work that right i think that's one of the and then that's what happens is now your books are the benefit of hindsight now and i can see that th suggestion i brought up right at the beginning of my presentation actually would have worked had they been paying this money into the iraq well just the withholding amount in paying the raft to my client it would have been that he would have said you're in breach but we would have had no recourse we would have been able to go and have a court adjudicate because we would have run into the same problem they were running into which is hey we want to create determination on the facts question what do you say  the sign so they couldn't do that because you wouldn't give them your client wouldn't give them the tax id number what's your response a lot well my client did provide what we believe to be sufficient path information that they could have  identified the entity and paid the money into the i r s and then the obligation would have been on the mokka and mr leopardess trustee to go seek that money and claim a refund but you know we all run into this issue where the know i'm not sure that it was why it was not a dr in the in the contract my guess would be that my client didn't think that it applied and that was part of his position when it came to the gilbert saying hey we don't we're not going to pay the full amount due because we think there's a withholding disagreed he said no that isn't an issue you know that fact is not acquired in this situation so there was a disagreement and you know mike why i had a tax attorney that was assisting him at that time and so he had an informed belief but you know i i'm not prepared to argue what that what that belief was or what the disagreement was between the parties a with respect to the leader and this is with respect to the with federal withholding obligations under gone there's no withholding obligation no your honor that that's not true the withholding obligation is triggered for every payment of the gilberts me to america under this is the tax which is the tax withholding for any payment that they make tools for an entity in connection with the purchase of a us property oh i see which i'm sorry deposit the money he still had the issue with the ten and i know we're getting into things that are outside of the record to some extent your honor but no mcas position has been if you with hold any amount you are forfeiting your interest in the property and you have breached your agreement under a contract liabilities for federal government who must be some form where they can bring their dispute and i appreciate that there have been these developments with the liens which we need to determine actually there's issues with respect to jurisdiction that have been raised all around but at the end of the day when you look at what the trial are ruled he ruled on jurisdictional grounds that were never raised by the parties and the parties did the gilberts didn't have the ability to plead alternative bases reliability and specifically on the breach of contract claim the dec action claim the wrongful recording like the opportunity to go back to the trial board and to the extent the court has to have additional fact finding with respect to us there was doubt as of the releases i think we should see that we'd also like the opportunity to amend the complaint to address some of that perceived deficiencies the trial court had in that breach of contract and my title when his well is assert alternative bases for jurisdiction over claims particularly with respect and aca let me ask you this i know that you're uncertain as to whether or not you need to withhold under these two federal statutes is the amount withholding in question or is it only whether you must go hold with the whole question it's only whether we  decide whether the withholding us to be done is right i know this is a little bit out of the ordinary let me ask both the long and rod's of they know the answer to the if they agree with that does that is the amount in dispute or is it only the fact in dispute as to whether or not it should be withheld either or both of you well i think it would depend on what issues that the gilberts will decide to raise perspective to that and we don't know that at this moment