a son versus the government of the united states must under the mere code follow a treasury regulation of by its own terms is impossible to follow that what what the players claim has been brought in this case is that it is a claim under twenty six u seventy four thirty three as mirrored to the virgin islands or the naval services appropriation act and as a result of bringing this claim the government the gervinho revenue has moved to dismiss the plaintiffs complaint and that memo she was granted by the district court on a number grounds there was one of those grounds being that the plaintiff failed to exhaust appropriate administrative remedies in bringing this is a part of bringing the claim in the court in the as a predicate to it there if you could accept the amount due i mean a penalty abatement is not saying we don't know the tax penalty would be a request for penalty abatement is saying that due to reasonable cause some of these penalties to read back a letter additionally this offer for an installment agreement is conditioned upon the release of a levy is issued against the tax payer so it was a conditional document so putting aside these often matter for a moment the four corners of your pleading does not seem to demonstrate the existence of an installment agreement that was pending with the i r s given the fact it was conditional and we don't have any anything before us that says it was being processed which is what pending so it doesn't here and we d complaint is fail on those grounds no your honor because the whether or not if the b o r the and if that was the if that was the case then the bureau of internal revenue could prevent any installment agreement ever from being pending just by simply not responding to notify the plaintiffs and say this request is you know we we are willing to discuss this request for you or if that were the case we are rejecting this request for an installment agreement and a conversation that took place on december twelfth which the b r indicated that they would move forward with the levy and it continues by stating you stated the taxpayer must use a form for ninety four sixty five to request an installment agreement we respectfully disagree so doesn't this letter communicate they said we never were at the pleading stage and if you accept everything in front of us is accurate that the the i r did respond to all the taxpayer what to do past players not decided not to do it so i don't think you really have a circumstance of not responsiveness you just have a disagreement how to produce the request yet know you are beat because what happens is when when the b our arses put this on a for money for sixty five which you need to proceed and then you choose not to proceed in that manner how can anyone deduce from those set of facts that in the greenman is in place or anything approaching an agreement sorry i'm going interrupt you i beg your pardon but the form that they've asked you they ask your client to fill out is the form that in their nomenclature is the first step to an installment agreement right that's what their position is gesture well there was this and in this particular instance is the only one that matters because if they're telling you that that's the way in which you have to proceed in order for us to evaluate your request for an installment letter isn't the failure of your client to do that acquiescence in the fact that they didn't exhaust because they didn't do what they were supposed to do and isn't judge swartz as proposition correct that they they didn't exhaust because they they didn't follow instructions your honor i would also point out that the levy if if what did in this december twelfth telephone conversation is to say we are rejecting this installment agreement offer because it's not provided on the correct form then under sixty one fifty nine the plaintiffs have thirty days not well your honor if the if the b r r is saying that there's that we have insufficient information based based on this if you consider an installment agreement request i don't see how that can be anything other than  documents the two documents that you submitted are in essence each anomaly that's what they're that's what they appear to be saying and if you want us to in due course consider your request and you have to comply with our regulations and you know file the correct form and if you can see that the correct form wasn't filed in the time prescribed then that would mean that what you described as a wrongful levy is certainly within their purview your honor the there isn't a regulation that exists this is borrowed installment agreement request on a form ninety four sixty five so you know you can't say that by not doing so the plaintiffs violated some some regulation because that regulation doesn't exist what is the form ninety four i'm not good with the numbers ninety four fifty five is ninety four sixty five or sixty five right ok i'm sorry what does the form ninety four sixty five say on your honor i don't from my own recollection i can't remember the full text of what the form says i believe the caption of the form is request for an a strong agreement ok i think that's all i need so says this ninety four sixty five says requests for an installment agreement they have nine of the just take another case not your client's case right there is ten thousand dollars owed not less than ten thousand dollars owed and there's no letters written someone goes in and gets the ninety four sixty five of six i believe sixty days he would be within its rights to attempt to levy my property yes your honor if there's never been of request for an installment agreement then then you're right there  no rights that would attach about it that would prevent a levy but i don't think that you can look at the letters that the plaintiffs sent to the d i r and say those are not requests for an installment agreement and i also don't think that there's any regulation or if i can point to an example that would be eighty four sixty five tony but if i can point to example you are allowed right now with the internal revenue service to go online and request a strawman agreement i believe if you all under fifty thousand dollars well you don't file form ninety four sixty five when you go through their online portal you're submitting a written request that the i r s to said ok here's here's additional avenue here but you're complying right with their procedure if you go online and fill out are for well that's correct your honor but the b r has never issued a regulation that says you have to file for ninety four sixty five in order to get into an installment agreement this is this is based on a telephone conversation that says this is what we want in the course of the same telephone conversation the players who played know you have the information necessary to determine whether or not we are eligible for guaranteed installment agreement one of the two decidedly different element of the the first minute complaint spells out what the negligence was in i understand your position and i'm i'm different who's the actor but the way the statute is written if it requires you identify an actor in an employer or an officer and looking at the four corners managing this taxpayer case and so the levy would not have been issued what we've got is we've got this request for his own agreement right and it's in front of a lot of great weight so if a levy got issues and she has this request agreement then by definition she's the person who's negligent in not saying hey we can't issue this levy because we have this request from solomon agreement i want to the questions can sound really small how do you spell your client because all the briefing in front of us statute that they brought around four thirty three require specific identification of officer yes we read it to specify other an employee or a specific action of an employee outside of just a levy if you know how would how would someone in the public know well so that they could identify something other than whatever correspondence see and i would you know i agree that it would be very difficult to figure that out but i do think that based on these facts that we have before us we see that they were working with the science they had communications they told them what they needed to do  had an agreement to pay off this this seems some it started at thirty thousand and two thousand and twelve and they got down to this five thousand eight hundred and odd dollars and along the way it stopped payment that's going to make sure that  no no that's not what i'm saying i'm saying that they were in contact with persons at the i r that we're able to go through the process with them i don't think that they have identified any officer i in this particular i will be i'm not normally do i don't normally do tax related things but i do believe that although we have the marin statute and we don't have an exact person named a compliance i think it's a times cannot win in iraq if you got to talk about two different things you're speaking about to whom one could exhaust their administrative remedies judge greenaway is asking you for the purposes of a seventy four thirty three violation does a person have to be identified as the officer or employee who committed the negligent act i would think so i think so i don't think it's possible for there to be negligence or recklessness without someone doing it and i thank you for the clarification judge swartz i would have to say would be the person that they have contact with whomever they are in communication with whoever has their keys they me speak to someone and they again it has to you have to identify you have to show that you are financially incapable of paying that that sum of money it has some of  the personal information contact information location that kind of information what was sent was from counsel and it did not include a personal information of the house arms nor did it go to whether or not they could pay that  the district courts one ph are that this missed it on a failure to state a claim under twelve the six i see that's what we were focusing on and primarily because lots of things were argued multiple things were argued and we felt that based on the order issued by the court that's what the court's decision would be focused on an issue based upon so have have you waived the exhaustion issue before us because of the way it was argued in your adversary in his brief did have an exhaustion point to which there was no response or was it fair to say you're not pursuing exhaustion as a grounds for dismissal book focusing more on the deficiency in the pleadings from your perspective no we're not we're not waiving it i wrote the brief and i felt that based on the order and the strength of it that i thought the the lack there of showing that there was recklessness or negligence or intentionality that was a strength of which the district court relied thank here i would like to actually speak to judge which is question regarding bennett our bar we i believe that the reasoning of judge gomez and his in his full decision that he did issue is correct with respect to to the difference between our bond then and i think that's also reflected in his one page order which says that that he's dismissing the case on a twelve b six motion because if the court had found that there was be looked upon so was sponsored by the court so if if if that's how do we even get to a determination on the merits under twelve b six  we get stuck on exhaustion i presume you're a tort your initial retort would be well you know we have this futility argument but i think as we've gone through our col they are told your clients exactly what they needed to do in your client's to do so i'm i'm i'm wondering how do we get to you in a discussion of twelve six potential correct there are two ways to look at that and i think that what judge gomez was sort of struggling with when he went to his opinion is to say it because if you look at the case under twelve b six as he indicated then failure to exhaust the ministry of remedies is really an affirmative defense that has that has been raised by it by the defendant in this case and if there's an affirmative defense then i think that you get into a whole other issue of whether or not this affirmative defense negates the complaint sufficiently that a motion to dismiss can be entered under twelve b six and i completely agree with the court that the judge judge thomas could raise any time a twelve you want to shoot doesn't have to be put in front of him by one of the by one of  the parties he didn't even even based on the order that he issued in we can we should we i believe that you can i think that i think that it's undeniable that this court any court can look at a subject matter jurisdiction argument but i think that the way that judge gomez has framed this in his in his opinion is the correct way to look at this which is that it's not a twelve b one issue it's not a subject matter jurisdiction issue figured exhaust administrative remedies is an affirmative defense which is which is which is raised by the defendant and it's not a jurisdictional bar to it to bring it to bring the claim and when you treat failure to exhaust as an administrator as an affirmative defense of then i believe that changes the rubric that you use that you analyze the complaint under under twelve b six because in effect what what the defendant has done here is they have they have in their motion to dismiss raised additional facts that support their affirmative defense namely exhaustion is not futile because b because they could have done all of these things and that i think makes it much more difficult to proceed are twelve also their arguments with respect to what did the person who issued the levy know about whether guarantee an installment agreement was appropriate that is also raising an additional fact making twelve b six inappropriate so when you i think the distinction here is very important and i think what judge thomas is done here is very important because if you analyze this futility claim under twelve b six then what you have is you have the defendant raising additional facts in their motion to dismiss making granting that motion under twelve b six inappropriate well actually you can look at it you could look at additional that in consideration of your well being you can't the initial order and the subsequent opinion under twelve he said thank you or thank you so much thank you for those arguments and will take the matter under advisement and