not it's discharge or not there's a three year statute of limitations there were term with out in two thousand and five the notice of deficiency was put down in two thousand and nine this bankruptcy was then would mean that the debtors income for this amount to be non dischargeable would have to exceed seven hundred ninety two thousand dollars for that particular year if his income is but one seven hundred ninety two thousand dollars the debt is dischargeable and this part thousand dollars that's currently on dispute before the united states tax form if the debtor owes the government if the debtors gross income for two thousand and four was less than seven hundred ninety two thousand dollars and some change then that map that that pet she is dead is discharged by entry of his discharge in a chapter seven if his tax dead is more than seven hundred ninety two thousand dollars for that particular calendar year then it's not dischargeable and the six year statute of limitations would apply so the factual issue that judge pearson did not consider in her summary judgment was whether or not the gathers income was plus or minus the seven hundred ninety two thousand dollars for calendar year two thousand and four that's the as she did she not address her opinion correctly stated is not really ready to begin that that those particular which would have affected nov one thousand nine hundred seventy not that's less than thirty five cases a year for the last thirty four year or so i mean the court has the power to make that determination yet here's what's going to happen if this goes back to the tax on the sole issue of whether or not the gross income was plus or minus the seven hundred ninety two thousand dollars and the debtor tries this in tax for and secured creditors as part of this bankruptcy estate i think that's the sole issue that this poor needs for the son the government has said in their brief well it's agree bob a part of this thing it's a thousand eight million paid i've read the stipulations mr walsham and i drew up the stipulations we ran it by mr struck that we all agreed to the stipulations we never said that that i mean i we never assumed it that number was never in the stipulations presented to the court and that's who still remains a major issue of the fact that the bankruptcy court needs to decide and for that reason this court needs to hol send this back down to judge harrison with instructions to make the determination of whether or not this is plus or minus seven or ninety thousand dollars to a very simple issue if it is more than seven hundred ninety thousand dollars the government's statute had already brought in for that race in this case  tially is to doesn't force a look at desirous of enough time to assess for two thousand and four and there are two reasons why the government wins the first this panel should refrain from actually ruling on that because it was it was never commissioner it's nice to eighty nine tax court case the debtors slash tax payers petition for tax court as part of the evidence in this case exhibit six it's part of the record for the panel nowhere within that petition is a statute five as their accounts was described it is a discretionary jurisdiction as i'm sure the panel's aware of and the united states will be arguing that the banks report should refrain from asserting its discretionary jurisdiction and allow the tax court case which can pay for some time to by the by the taxpayer initially at all or else it is waived so you cannot simply bring it up later however if we're talking about the actual abilities there is a back door to getting there and there is a tax court case that went there this is be commissioner is a nine hundred sixty tax court case where it is not previous been raised but throughout the course of the tax court trial they were able to determine the liabilities what would was much lower because the gross income omission and this is still the tax there's less debt it's a burden to prove that the government is incorrect however it would be if there is a change that could affect the satchel in taishan however the six circuits held that a statue limitations is a matter primarily for different reasons you feel certain that the debt is not it's not his dischargeable i'm asserting that it's not a priority claim so basically since five twenty three is connected to five of seven this is very much the same argument i want to go back and start with the way this case began because you're a submissions about what we're deciding here today i don't want to give a brief overview of what happened the debt or receive the six thousand dollars check i found out about it asked for a turnover didn't get any response i thought a motion for turnover at the hearing on the motion for the turnover of the first time i found out that the debtor ever turned into the i r s i didn't of course threaten the debtor with the seven twenty seven action objecting to his just charge and everything else that matter was continued several times mr left in his final year and i entered into an agreed order at that time the i r s had for some reason sent the debtor a thirty two thousand dollars tax refund check but he did turn over to me i got that and said ok now me difference the at least because i don't know where the thirty thirty thousand dollars probably was had something to do probably probably property of the estate but yet he gave it to me so since then he started to me a thousand dollars a month and ended up getting a lump sum from a family member or something and paid me the entire amount so now i'm holding six thousand dollars i have no arguments with the debtor any more so at this point in time by this time he had already found his adversary proceeding to recover the eighty six thousand dollars so that i wouldn't go after his client then i had to file a cross section against the i r s raising the priority issue because it was there and he was raising it is  e arguing that that it was not a priority because it was within the outside the three years nobody was looking at the internal revenue code page to say that but nobody was really focusing on it judge harrison was when when she wrote the opinion she was saying ok these three subsections under five zero seven eight eight are eight believe are not in our are not tied together there disjunctive and we all looking at the opinion agree with that but i think she was focusing that was the decision to be made she got to the point where it were the subsection three which deals with what we're dealing with today was whether it was assessable under everyone out of bankruptcy law and she basically i think just presumed ok we're here the arbus assessable so they went well well when it got to the appellate stage and i took a look at this and maybe and i don't know if i'm the first person to look at the internal revenue code this entire bankruptcy matter but it's  that when it wasn't when i wrote my brief i actually wrote it taking the position that this was an issue to be decided under that into real revenue code provision i found it a week or two before the iris filed their brief because i wanted them to respond to my argument it's funny that in their brief focus on page fifteen the only way they respond to this was saying the increase of one hundred eighty two percent is an undisputed fact that is part of the record it's not an undisputed fact the debtors have obviously contested it is and even if the debtors are foreclosed i'm not foreclosed to assert that the statute of limitations has run under under section five was seven a loan of three so so regardless of whether the the of the government's argument is correct that the debtor can't raise it now i certainly can't under section five zero seven eight as is a determination of whether it's a priority claim or not so here we are and because i'm not arguing the issue of whether i'm entitled to get eighty six thousand dollars back from the government because i've already got and i have not raised i did not assert that in my brief and i've looked at the book court's decision on it and i liked it not to not to file my own appeal in this matter a process pilin to the debtor could raise that argument obviously of the government wants to pay me an extra fifty three thousand dollars i'll be glad to have it order that i could file it way down the road and he wanted to get the money back in my hands any way he could so that i didn't pursue his client on an objection to discharge which he finally accomplished so he now has satisfied that problem and so now the issue has been vibrated well that's a good question your honor that's it would be a matter for it would probably be raised in the bankruptcy court the government probably file a motion to abstain under three o five then judge harrison would have to decide whether she wants to rule on it or what she wants to send it to the the problem with the tax court is i'm not a party to those proceedings and if it goes back to the tax court the debtor in the government fight it out i look at the opinion to decide whether i like it or not and i read read read argue the case from scratch in the bankruptcy court on a priority cli two places so i would have argued in front of judge harrison that it all be decided in one place rather than have a bifurcated in two different places but that's up to judge harrison and that would be on a motion to abstain under three o i probably might have another mother bite at the apple i don't think i'm necessarily preclude because it's already in a bankruptcy proceeding it's not a pre bankruptcy determination unless someone want to make me a part of the tax court which again i would i would argue against that but i've been making parties that it does or could in other courts around the country before so i guess that could happen it's a matter of judicial economy has to be decided i think it should be decided one for and with all parties present in the bankruptcy court would be the most logical court to do that get this thing back if this is a plus or minus situation we're not asking for additional leans from the government he paid to mr walsh i think that matter got itself resolved great would save the discharge which was my primary concern and it's something that stuck with me when i lost my first court lesson was that if you build a case are strong enough to appeal it you should always argue it and never let it go be submitted on briefs because if the court has questions this is