use of the criminal law to prosecute for tax evasion because the idea here of criminalizing the timing dispute that we have was one that wasn't clearly established in the law at the time of the prosecution the standard that has been applied here because of the willfulness requirement was set out very clearly in a prior case  allowed to be prosecuted under the criminal law and what you said then your honor is still very much the law that is applied today if it is clear beyond any doubt they're using that a scheme  appellate court has ruled on the particular issue that is facing you here that he has when a receiver receives payments prior to them being either formally approved by the court  i was a receiver i received payments from the court but they were always subject to court of provable and i might get these in one nine hundred ninety three but the court might not approve of them until hundred ninety four therefore it was entirely legitimate for me not to report that income and might hundred ninety three even though i may have technically received it it was subject to court approval in fact the court might even ask me to disgorge some of it based on the the final on it do i have that capture kind of accurately yes you do ok well but what do we make of the fact that your client never filed it's i'm sorry i didn't hear i couldn't we make issue the answer is he has filed subsequent returns but not pointing back to those amounts because that matter at the time of the trial was still under litigation with the i r s he was represented by a civil and criminal tax the problem with that final determination and why we feel it's not dispositive of the question at all is that there were two claims that were currently still being made against those awards one for attorney's fees and the other for for some expenses which had not been resolved and the evidence of that is that there is evidence of that in the record and the instruction that we asked and again i want to make this very clear the instruction instruction a which is appended to our opening griffin is found and the record asked that the jury be informed of that where the final determination hand or claims were still extent against the payments that had been made both of them are set forth that the income would not have to be reported that covers all situations in our opening brief that was not made clear i apologize for that but you are absolutely correct  know your honor as far as well i mean my opponent i'm sure will correct me if i'm wrong but i believe that the only determination that fits in the end in the fact sequence that you've set out is x geo partnership which was in december one thousand nine hundred ninety two was the final determination the the issue here really is i believe a larger issue than the fact issue because there was a knowledge went below in the extensive argument briefing that we had on this that not only was the law unclear but that if in fact the claim of right documents the north american the old north american case did not apply here and the contingent rules did apply that there would be no basis to proceed on the prosecution of this the to tell any counts and not separating the failure to file count and we have cited in our in our record in our brief the where that was frankly acknowledged both by the prosecution and by the district court and the importance of that is that now of course the government is saying that that the matter was very clear and under the cases it's very clear that this is a claim of right we certainly dispute that you are seeing the cases that we have cited the cases are all over the place on this and they're very fact sensitive and i wouldn't want to suggest to the court a way that i believe those are  intellectually synthesised and in an honest way it seems as if the appellate courts in reviewing this whole contingent versus claimant right issue don't go on cash basis or cruel i think that's a red herring what they go on is how real the possibility that the payments that are made in whatever the year in determining this timing issue wow real is the possibility that there is going to be some cool right action or judicial review which is going to prevents the continuing receipt or forces discords moment of some of these monies and in fact in a record of this case there is evidence that in the case of one of the partnerships there was a claim which forced mr george t disgorge thirty thousand dollars in money he had previously received so far as we are aware on the facts that are before this court there is a very real possibility of these monies not when you apply to a bank and you minimize your income at this to george did more than then he did more than prefers to fall in these loan applications he treated these receiver fees as if they were absolutely them as part of the loan application didn't it i do not excuse his conduct what i do say to you it is beside the point of the main issue you have to decide here the main issue is was the conduct willful it was the failure to to report this income willful your contention is he had a good faith belief even though he got it it was subject audit credit debit whatever but here he is going into linders saying it's my money it's my income and here's my income tax returns because we're going one step before we're getting to where you are and the argument that we are making is despite whatever his subject of belief may have been the state of the was not sufficiently settled objective the at this point to allow for criminal prosecution for for willful evasion of of of the tax law it is certainly is pertinent to the good faith belief aspects of this case i'm not disputing that with you that those facts and how how they may fall and how they may be interpreted go to that but there's a prior threshold question here that is you don't even get to the good faith issue how can it be both in your my this is like shooting a dead body well there was a case here this morning perhaps that's that's an afternoon allergy i would like that doesn't matter what was in your client's mind what is intent ma years he can't be prosecuted or convicted for it that's correct he can be and i suggest to this court that this is much more properly where you should use administrative or civil collection actions because what is going as accurate with the exception that i don't agree that it was two but once again i may be rudely corrected if you're in a few minutes here but i'm i'm making the point that that that maybe this is a case where  cases may end up making bad law there is an issue here which transcends the actual facts of this case which is that act the time of this prosecution it was not a stablished that the type this particular area of the dolls from line of cases which i addressed is that that is are on the convictions in this case regardless of whether or not you could properly conclude if that was the case and i would argue against that but if you if you could properly conclude that the defendant wasn't acting with a with the best of intent i want to say one more thing i see my time is up there is a misdemeanor failure to file case here that we believe this tainted by by all of the evidence that came in on the felonies but more importantly even if you were to reverse on the felonies and uphold on the misdemeanor failure to file legally that must be remanded for for sentencing  issues because the judge below used guideline and table calculations which as much as i can understand what the current state of the l be addressed again in the district court i thank you very much and you have a little time for revolver how much do i have to look at a minute all right thank you very much we'll hear from the government a principle of lucas irwin that income is taxed to the person or entity which in fact controls the earning of the income that was the holding in russell he supports the government's position in this case where we have a long standing  obligation to repay then he must report the income in that year and that is the case here is not a question this counsel suggests of some sort of analysis of the likelihood that he may be subject it fees were reported to be was one hundred thirty three thousand for one hundred twenty six thousand per another and another sixty six thousand so there were actually five instances where mr george did not act in accordance with these instructions under four fifty one and in the regulations can be applied and understood because they seem to be ambiguous on their face and secondly i case did not establish that there were any restrictions on how mr george could use a piece of the thesis and the evidence came and there was check after check many of which were actually written by mr george and receivership account checks were deposited his personal account and he had unrestricted access to use it as he pleased there was no evidence to indicate that at any time while he was a receiver and receiving fees there was any restriction whatsoever now it was possible a possibility that in some subsequent date you know someone could come in and challenge his fees and say well geez he was overpaid he should have to score some of the fees  evidence is in the record that he received those these on a monthly basis basis they were approved by the court and initially and he receive them he had full access to use them but as he pleased there was no restriction whatsoever on his used to the fees subject to subsequently somebody possibly challenging them and i would disagree the record was there with a challenge with their record does not show that any point mr george had to disgorge and he feels so i just instructed that we jury as to cash basis taxpayer when does he have to report his income he asked report his income when he received it perhaps control over and that's what the court instructed she did not elaborate or discuss the claim right doctrine proposed drew instruction which was rejected internally by the not at all his instruction was that in fact the payment was contingent it was a contingent payment and therefore it was an income until the we're going to have to repay it at some point in time if he if there's no fixed for existing obligation to repay the income tax as the supreme court stated north american oil the fact that he may have to division at the time that the return was not filed and the evidence concerning and in the trial record concerning and the advice the consul and all of that the evidence concerning that is summarized at page seven opponent's opening brief and can be crowned primarily at the trial transcript records that are cited there fundamentally judge what was going on is that there was a series of discussion that extension had been filed the extension had run out the civil revenue agents and the criminal c id the case was in transition there had been a thirty day extension given that had run past there had been advice of an attorney as to the timing of the filing of this all of this was set out at trial and is set out in the record and to the extent that you may have understood i was implying that that's currently under some under some  resolution that's not the case well evidently that was settled then you know it wasn't settled it went on to your argument was that that's what should have happened absolutely my argument my argument is that where there is this that was that was and certainly as the as to that ninety three year which was closely connected with ninety one and ninety two that's correct your honor i hope that answers your questions all right thank you both for your arguments very interesting case with interesting issues