was a few times so i know that you all read the briefs are familiar with the issues so i would like to get to the two issues that i think are most important in this case and the first one is why this case is here  filers to use in order to be qualified to be fired and then fifteen hundred error because they were all asked also there's some reference in the briefs about certain types of tax returns that must be filed electronically was this return of that sort of was this a more generic either or either or ok and also is there any notice or response generated upon the filing a return such as the one involved in this case is there some type of confirmation e mail to either the taxpayer or the c p a or whoever it is whoever is the preparer yes there is there is a confirmation e mail to the c p a only to the that's important because the taxpayer doesn't have access to that that e mail when was one cent a year and a half later was it's and immediately when it was not accepted it was sent immediately when it was not accepted yes ma'am but that's but not in this case in other words he had been talking about that i think you're doing a lot of talking about this case was was mr dunbar ever notified timely by the i r s that it had not been accepted for filing  understand that it's not accepted well then the remedy is this several months later the automated collection system when it receives and when it recognises that a return was not filed since a letter to the  in cyberspace somewhere didn't reach anybody in this case such that the software failed all we know that there was a soft that there was a still you're a cyber failure we know that it was between the internal revenue service is computer and filing for your clients provided a written paper copy of the tax return yes and if so why did they pay the taxes i think there's nothing in the record about why they didn't pay that they had paid the taxes they paid and i think the next year i put my proof of the two payments and they did pay it the next year i don't know why they didn't it's not in the record about why they didn't that's us that's a separate penalty of failure to pay penalty and this is a failure to file a case and gave the letter of designation you can't e file issued delegate the duty to file to the r n i take it since we're talking about electronic filing that there's going to be an electronic draft out of the taxpayers account for any tax liability is that correct for paying the had failed to demand payment and that would be a factor that we would have to address i have to be candid about it and there you know like i say there's it's a facts and circumstances test its own balance test and this is this would be the one thing i think in this case that we would have to address  know in detail the government doesn't have to demand payment you prepare your tax return it shows what taxes do you know you have to pay it they don't have to that have to notify you and say pay the us that's right and he paid not only the taxes in full the also pa and and and and whether he had a reasonable excuse what is a standard for him to get a big win for you to file penalty he did pay he paid in full and he paid the penalty the so you to pay penalty what the government's trying to hit him with now is and those are different penalties there are additional penalties s or to the host which transmitted it to the i r s he called the c p a to confirm that it was timely filed the c p a represented that it was timely filed and in this case the i r s introduced five years of transcripts  trying to prejudice you about the failure to pay that he didn't know that he had paid and he had a history of not timely paying but those transcripts also show that he has a history of timely filing but he was never advised by mr dunbar it and he has a c p a who has a history of timely filing so he relied on that representation and when he would just but the c p a also gets a confirmation e mail i mean we've been talking a little bit about every jackson e mail a notification that you taxes haven't been filed because of whatever deficiency mr dunbar or any c p a that routinely files electronically do they not receive some type of e mail that says great we received your  does not receive one when it's accepted and with nine hundred returns on it isn't it that's that's the default provision for a listener is received this isn't what i'm telling you is that right from his affidavit so he did you say supposed to receive rejection noticed only a rejection or so yes but he didn't say what he did not receive in this case that's right because a computer malfunction because a computer malfunction yes the construction across remember paper returns when we put paper returns in the locus and mail them that was filing now we have you filing in the irises asking you to take that thirty five year old case and deny taxpayers access to reasonable of issues that might arise in future cases which are purely hypothetical at the moment the amakosa brief in this case was filed by the american college of tax counsel that is the well i think the most prestigious or they're run by former american bar association leaders in the tax evasion they i understand they pick two cases a year to file an am because brief and they're asking you also not to we feel like this case falls under the substantive advice exception and the unable to taxpayers unable to perform without special training and effort exceptions in boyle because that in order to you file you have to prepare a tax return you've seen donald trump's tax return taller than he has it's higher than he is tall in order to you follow return it has to be prepared like a paper filing which is just mailing only filing a return has to be prepared and then it's got to be transmitted electronically through all of the hoops that we just described need good morning please the court i'm francesco counsel for united states i want to address the issue that i understand is every person's first concern when you read this case what happened to the notice of rejection of the taxpayers return i just want to clarify that the record does not make clear that the fall for this lies with the i r s this case was decided on summary judgment the only evidence in the record regarding the rejection n e is the c p s affidavit saying that he didn't get one there is no evidence as to whose fault that was is it was it the i r s was computer failure to forward the rejection notice it could cause so there just was no factual development of this issue so there was no i search for these kind transmission correct that's sort of pitiful well it's  out and you're saying nobody even conducted discovery with these intermittent parties well there's actually no dispute that their return was rejected they conceded they have conceded and acknowledge that the return was rejected filing rules which there c p a was aware of because he was inexperienced you file or the rule has always been and still is that the return is not considered filed until the i r s acknowledges acceptance the handbook also provides that  every filing with either a confirmation that it's received the filing and then it sends either an acceptance notice or rejection notice the word you do in this case the record does not i personally don't know and the record also does not ultimately i recognize that the i r s the best practice is to send a notice that indicates rejection or acceptance and this is according to the irises practice what happens however i think is the district court recognized ultimately it's not dispositive or necessary to the issue of timely filing or of reasonable cause the it that i understand i want to get back to this transmission of information that i understand from your answer notwithstanding with the c p a says in the affidavit there is an e mail or an electronic notification when the c p a files the return and says we receive the return a confirmation that the s received the return and then within however long it takes there is a notification that either the return is acceptable and  in email that says no the returns been rejected which would have been the one that's missing in this case we think that it has been rejected so in other words a c p a like mr dunbar would have can expect to receive every time he handles  return and electronically files or tries to can expect to receive two notifications the excess the acknowledgment and then either an acceptance or a rejection is that correct that's correct and the c affidavit in this case which i believe is at a record pages for forty six or four forty eight that that affidavit does not say that she does not go ordinarily receive acknowledgements or confirmations it just says that she did not receive rejection of this in this particular case ok because i understood her go back and read it it's in the record of course but i understood counsel to say contrary to that that i don't have the affidavit in front of me so i can't check right now but i know that that is where it is in the record the iris a filing handbook also says and that's at record pages ninety two through ninety three that the i r s acknowledges via email confirmation every filing and it explicitly requires that you file providers to follow up to ensure that your return has been accepted and in fact this c p a was able to do that in this case a year later when the taxpayers had received a letter saying from the i r s saying we never received a return the c p a was able to go online to listserv website this is that page record pages for seventy six and five sixty nine he was able to log on and see that the the last entry regarding return was just that it was sent to the i r s it didn't say it was accepted and if you look at this page five sixty nine in the record that is contrasted with the way the this report shows the follow up regarding the state return which says it was accepted the initial extension request for the federal tax return that says accepted but this federal return itself that the last entry was just sent to the i r s so had the c p a follow and actually the amicus in this case american college of tax counsel on page twenty seven of their brief acknowledged that the p s duty of care he should have taken some action to follow up when he didn't receive any notice had he followed up he would have learned that the return was rejected and there was a ten day grace period to refile to rectify the rejection code in this case neither the taxpayers nor the c p a took any action to follow up to get back on line and did the ten day period start assuming i don't get the rejection notice because of whatever glitch right now i have ten days from the day that i go as the c p s i go check on and say oh my goodness it hasn't been accepted in fact there's a problem do i get ten days from that day or is it ten days from the date of the notice that i didn't get the  the filing handbook says that it's ten days from the rejection notice and so obviously that assumes that you received it all right right i think the i r s is their practice in this area is to be flexible with tax payers so i think that if you if a c p a or a tax payer log back in turbo tax or gets back on line and discovers that the return has been rejected and contacts the i r s to work it out i r s ordinarily is very flexible in this area in fact just this year in this filing season the i r s you filing system lose on the day returns were due and the i r s of its own volition gave taxpayers an extra datafile they also did this several years ago when the turbo tax system was overwhelmed on tax filing day but in this case neither the dunbar's no neither the haynes's nor the dunbar the accountant took any action after just sending the return to follow up with the i r s to ensure that it was accepted and that was the duty of care under the i r s the filing handbook think this court's decision in hofner which was cited by the district court in its opinion also shows the taxpayers must take affirmative action to ensure a timely filing it's not enough to passively wait for the i r s to notify you of a rejection in that case the taxpayer was under criminal was it was facing a criminal prosecution in the district judge had ordered him to have no contact with his accountant who is expected to be a witness in the criminal in the criminal trial so the taxpayer didn't file his return because it is his account had all of his tax records and couldn't contact was heating the district court order and couldn't contact his c p a he eventually filed his return lee or actually after the criminal prosecution ended the taxpayer when asked the district court to modify its order so that he could get his tax records back he filed his return late and faced a late filing penalty a panel of this court held that that was not reasonable cause for the late filing because the taxpayer was expected to even though he was obeying a district court order the taxpayer was expected to go to the district court and ask for a modification to get his records back from his c p a this is this is the thrust of boyle and this co holdings that it is a non delegate will duty of a taxpayer to ensure a timely filing and that means get it done however you have to get it done the only exceptions are when you are truly an able to effect a timely filing so even hundred million tax returns that are filed every year it tries to follow up as timely as it can i cannot explain why in some cases it is able to respond in a more timely fashion than others but again i think this  that the supreme court addressed in boyle that we have a tax system that relies on voluntary self reporting and because of the volume of tax returns the i r s simply cannot bear the burden of insuring the timely filing how would they have access to the fact that the the filing was rejected or not accepted whatever the magic language the iris would have access to that the i r s is dealing with over one hundred million returns whereas the taxpayer so they must have known something what did they know and when did they know it i cannot answer that for you your honor but the taxpayer only has to think about his own return and the taxpayer in the c p a also have it within their power to take measures to follow up there is an iris phone number that you can call there is an iris website that can be typed something her on her i just don't i don't buy into the argument well i think the tax payers here did know something was wrong when the i r s did not attempt to collect or withdraw they owed almost fifty thousand dollars in taxes i mean i think even the most unsophisticated taxpayer is watching his or her bank account balance if you know you're going to get a refund you're checking to see when that money comes in and when it doesn't come in after a few weeks you start asking questions here the hands of god almost thousand dollars christopher hitchens is a lawyer his wife priscilla is apparently some kind of business woman so these were not unsophisticated taxpayers date there is there is no explanation in the record for why they did not make any inquiry as to why they were sitting on an apparent windfall of fifty thousand dollars that put them on notice that the i r s had received their return let me ask you something that came up actually raised in the amakosa brief since i think we are clear and it's uncontested that this is an either or filing exercise either male or electronically is it is it accurate to state that had this return been filed by mail it would have been accepted by the i r s if it had been submitted in paper form if it didn't it again this is the original return in the filed return or not in the record so we can't actually say but my understanding is if a return is filed that has this type of social security number error that would not cause the paper return to be rejected the i r s would send a follow up letter at some point saying you need to make this correction to your return but i it is my understanding that that would not cause the return to be deemed of the people returned to be deemed late filed and then and it would obviate the what we're here for today the penalty is a correct that's true that's true however congress has authorized the i r s to make different filing rules for people returns than for electronic returns this is in section seventy five zero two of the code and section sixty eleven easy there are two different one of those is just one of those instances cracked if you electronically file you're necessarily dealing with a computer system and sending something in via computer system entails all kinds of computer processing codes that just aren't implicated when you send people return so it's be fair to say the taxpayer assumes the risk of some type of electronic or software glitch that would it would be safer if we all sent our returns in on paper is that what the i r s is suggesting to us i think i'd yes and no i mean just prefer sure the taxpayer assumes the risk of the method that he or she he or she uses to file your return at the same time there are risks with filing a paper with mailing a paper return if you create your own return out and put it in an envelope with a stamp and drop it in the  in your mailbox out front and it never makes it to the i r s you have no proof of mailing under the internal revenue code in the treasury regulations the only true proof the only thing that's prima fascia evidence of timely filing is a registered mail receipt you would need to take it to the post office and get it registered mail r c so both ways have their their ups and downs with an electronic return all of the software programs allow you to log back in online and check the status of your return so within a couple  days if you are paying attention to it you can find out if you are turn has been accepted or not so you actually can follow up more timely with an electronic return than paper return but either way your honor i think you're right that a taxpayer assumes the risks of the method that he or she chooses to file your tax return but as the supreme court pointed out in boyle taxpayers it takes no special knowledge to know a deadline everyone knows the return is do able fifteenth there's plenty of time to meet that didn't the congress and the i r s allow taxpayers to have an automatic six month extension so you get even more time and the i r s also allows a second extensions beyond that first one on a discretionary basis so from the government standpoint it is doing everything it can to make this process less painful and that deadline easy enough to comply with her version of the special knowledge of the computer system  or should have known all of these rules but even unsophisticated taxpayers are able to file their own returns the evidence that was in the record in this case that the district court cited in its opinion was the same year that these taxpayers used a c p a there were over i think the number was over twelve million or it might have been closer to thirty million taxpayers that filed their own returns electronically  who was appointed executor of his mother's estate he didn't know anything about estate tax issues and the supreme court recognized that he reasonably hired a probate attorney to help him the probate attorney it was just a matter of enabling oversight miss the filing deadline but ultimately the supreme court even though it acknowledged that it is a course of normal and reasonable for taxpayers to hire attorneys and c p s to help them with tax filings they ultimately having non delegate will duty to ensure the timely filing so cause really filing but in this case there was no substantive legal advice about the electronic return this was just mere return preparation and return firing and in fact the denon bird case involved even closer facts in this case in that case it was two individuals they were it was two brothers who owned a corporation and they were in a dispute over how to treat a stock purchase transaction and the c p a said it's not clear to me how to even report this the two of you need to sort this out they couldn't manage to sort it out the c p a got several extensions ultimately they were trying wasn't filed because the brothers were still in this fight over how to report the transaction and this court held that that doesn't rise to the level of substantive legal advice that would excuse the late filing so the simply hiring a hit be an electronic return preparer who's more versed in your filing rules than a taxpayer i don't think and the district court held here wouldn't labor service is a really important case so do you have any other instances where there was a failure to send out an acknowledgement or an acceptance or rejection i'm not aware of any other case this is the only one that's a fluke it to my knowledge this is only the second case involving an electronic return and there's a second one pending in the ninth circuit a case called spottiswoode it we sent a twenty eight a letter to the court last week the same issue that the i r s fail reply i think in that case no the turbo tax did notify the taxpayer of the rejection and in that case the taxpayer just didn't log back on for several months and so didn't see the rejection sixty seven twenty one and sixty seven twenty four that require mandatory east filing for partnership returns and for information returns like ten twenty nine stub utusan or all the rest of that in that statute they allow reasonable cause as an excuse for failure for not paying that late filing penalty so if you can imagine the internal revenue service is here today arguing that you the taxpayer should not have access to a and circumstances relief provision that's been in the code for over one hundred years and yet congress passes a law specifically granting them that and there's as per se if you if you file a tax if you e file you have to prepare a return and then you have to have a computer have an effect that certified that satisfies a fifteen hundred error code that can follow the handbook that has a computer that can and access to the internet and all the rest of that so the and the iris administratively is allowing access to your or your own or your buddy the argument before you are you give us something entirely new here she's no one on rebutting her argument that she was talking about the dinner burke mcmahon and this is what the seventh circuit in ninety seven said the oil held and i quote reliance on an agent and here's the key phrase for the ministerial task of filing a tax return by the statutory deadline denning burke said the same thing this is a fifth circuit case in ninety one quote we read boils holding more narrowly key words more narrowly simply that the failure so what is what the governor is trying to do is take this thirty five year old case apply it to e file and and deprive taxpayers permanently of having access even upon us facts and circumstances test which we have today which i think is overwhelming i don't think either in forty years i don't think i've had a case where a taxpayer acted as reasonable as this one did and have a per se rule that you cannot delegate the duty to e file to a third party when they probably did their own form of form eighty eight seventy nine that requires you to delegate to a third party and they've established procedures that only third parties can provide those kinds of services in order to e file so so so where the tax commentators on it here  in the united states we have quoted i think there's almost a dozen tax commentaries law review barred turtles things like that there's a firestorm of opposition to expanding boil to e file in cases the government was unable to cite a single one and we looked high and low and couldn't find a single bar bar law review bar it could article etc supporting this idea of expanding oil and that's and that's the reason the amakosa in appearance because there are such as tax bar is against this this expansion notwithstanding that would that be the responsibility of congress to be clear based on the technology that's available or responsibility of the supreme court to address boil in today's with today's technology sure you come to this court and we do have boyle and we have followed boyle you just mentioned today that denis burke case and we have filed boiled to to a certain extent sure absolutely i understand exactly can boil boil involves a paper return a paper tax return it does not address e file return by its very terms it was intended to be limited it's exceptions that it says that you can delegate deal with complexity which we have in this case because a has to has to prepare the return and then are going through all the steps of the filing that he has to do and in terms of congress changing it yes in the last case i had here before this court congress i testified before congress on your law and they two statutes were enacted because this is the most prestigious tax court in united states what you will decide is influential all across this country can you can you put p it may be yes ma'am it may be because we can prove that we never got it so we can prove that c p a never got it or certain ever got it and he filed provider didn't get it so some either got it or failed to transmit to us so we can