the next case on for argument is united states versus tannenbaum at all decision but six months before the distort entered its decision so mr clark before we get into that will probably allow both sides a little bit more time here to discuss this i'm not sure i understand the government's concession government seems to be making concessions these days the government's concession that what passed over to the spouse didn't somehow have a lien attached to it well explain that to me well as a matter of federal tax law the federal tax lien attaches to proper property and rights to property belonging to the taxpayer  and if the taxpayer transfers his rights to a third party the lien follows that transfer right so how about the property that his right was transferred what right now see that that's c yeah that's what that's what we you look to state law determine what rights the taxpayer has the federal law determines whether or not those rights are property within the meaning of the federal statute and saying no no this was a tendency by the entireties and that's the key point l has always as a matter of new york law the deceased taxpayer no longer has any the his property right is not transferred just extinguished it doesn't exist anymore and that's why we have not mounted the argument in this case that you know that the deprive printers was transferred i think it was just accidentally was in the face of craft well after as you can you can get you if if he were alive today what would you be doing if he were alive today then we would even know he's dead today we're not all but we're if that here were different and you were up here you wouldn't be conceding that you don't have a lien on that property that you can then go force a division of the property and get your money you know of course under kraft the lien attaches to deduct the taxpayer's interest and the entire property and the lien attached to mr town and boss interest in his property as well so then the interest that it seems to me or tell me why i'm wrong the interest that mr kraft is sorry that mr tanenbaum had at the microsecond that he passed away that passed over to the spouse carried with it the lien th attached why did it go away that that's how we interpret new york law is that his interested not pass over his interest just extinguished it no longer existed but you could have had it for sale before he died but you couldn't do it after this at the bottom line  r corrected to depending upon how that this shakes out in this case because under new york law which is to follow up and judge was question if they were both still alive in the lean only touch to mr tanner your argument would have been you could do for sale of the property give her her interest which you could do a forced sale but once he dies since his interest disappeared and now is all in her you couldn't do it you can't do a for sale tanenbaum had died before we brought suit well we would not have brought suit because our understanding of new york law is that he no longer had any property interest and then there was nothing at the lean to touch it because again as we the one interest is just extinguished and so there's nothing else his entire interest in the property can i ask you a question on the different part of your briefs your brief here is and that is the mitchell case court case which everybody talks about and cites and relies on is it your view th mitchell does not give the district court any kind of discretion whether to affect or not proton result or is it discretionary i couldn't figure that out from your  accused its discretion under this we are you the second part to just cure it well we're like we were with the second circuit cases after mitchell it seems as they recognize some discretion in the district yes but of course they're no no second circuit case as far as we've been able to statements at the hearing and so i know that's kind of iffy because in reverse or send it back and ask for further explanation well and therefore sending it back what are we asked the district court to do we think that the pay should be going tell me why if it's if it's discretionary then i think that i think there kate the case law says that the courts are supposed to explain its decision when it is a discretionary decision and you know all we know here is what the court the judge said at pay into taxes for all the years yes for some twenty thirty years yes yes those are equitable considerations and that's something that the district court can consider yes it can consider that wasn't argued to the district court or we ar proceeds as of two thousand and fourteen the property was estimated to be one point two million dollars i don't think property values have declined since two thousand and fourteen in addition to that the district court recognized that actually missed mr tannenbaum's mother would be up to the tannenbaum says i just ask about these factors the district court did also mention the time that the summary judgment was under consideration it wasn't that long a period of time compared to all the other cases in the district and also talked about how the criminal case against missed him and got was dismissed by the governments are those factors that play into the discretion of the district court and well riving at this application well again  own judgment not pro tunc when a party dies between submission which is the date of argument and the decision and so on one of the cases we cited harris there is commissioner the case was submitted and the party died and forty two eighty one day interval between submission and decision and both cases without any further discussion to any row and the other factors are relevant the supreme court said this judgement is entered no pro tunc wrong with the there is a citation to an i r s opinion on this does the federal tax lien on entireties property survive the death of the taxpayer the answer is as is the case with joint tenancy tenancy with the right to survivorship the taxpayers interest in the entire property is extinguished by operation of law at the death of the taxpayer then there is no longer an interest of the taxpayer to which the federal tax lien applies in new york the entire which is i believe codified in the real property where in the real property law but i'm not sure of the section i can certainly send your honor pardon ok the each owner is possessed in an undivided one hundred percent interest in the property and upon the death of either of the spouses the hundred percent interest in the property is simply extinguished so if mrs tannenbaum had been the one to die her estate would not have been entitled to half of the sales proceeds rather her interest would have been extinguished and the government would have gotten one hundred percent of the proceeds of the sale if she had died during the pendency of this action as mr tanenbaum died during the pendency of the action his right to the property was extinguished until perhaps  and the fact that it's interpreted it this way rather than saying the piece of property that mr tanenbaum had when he died was a piece of property to which there was attached a lien and so the property that would go over was a l analyzing whether something should be known pro talk does mrs tannenbaum's benefit to the tune of one plus million dollars for unpaid taxes factor into that i don't believe that  it does factor into that as de facto she was a tax fraud which then went away through a deferred prosecution right i don't i don't think that your honor should assume that she was defact tax broad she did sign the returns but but it could have been innocent spouse says easily and therefore the liability would not have a prosecution rather than rather than i understand the law i and i think that there are factors on mrs tannenbaum side as well that the court should have considered and i believe to consider but i also think that we should not  those she shot her her mother who resided in the house with her needed to stay in the borough park area is a very elderly holocaust survivor really cannot be transferred sympathetic and i think the government has made a concession in that regard snow that's off the table right also made a us investment herself into the house to increase the value that could be accommodated in the sale right except that it was it would be fifty fifty is what the is what the court ordered and mrs tannenbaum the house is also used by the community that the jewish community to visit hospitals and nursing homes in the area she has accommodated orthodox jews from all over the world in that house and i believe that that's a factor that also should be taken into account take into account with this record it was not but we are not in the same we're we're not any more i don't think in the in the same situation because now we're looking at whether the outrageous that somebody is involved in litigation and the court doesn't find out about it until months later it was a shock to me as well but aside from the fact that the court made a decision that it would not necessarily have to make it didn't change the circumstances we would be i think asking the same questions at this point as to whether it could be retroactive about oh i don't believe it it should and i also believe that the court should not overlook the fact that this is an article three court and the question of mootness arises when mr tanenbaum died his interest was extinguished and there was nothing for the lean to attach to at that point the case became mo the cases in which the government decided in which relief was granted there was an individual to whom the same interest attached say an executor so that if mr talent if he the people in say mitchell v overman had died the day before before the the case was submitted there was somebody who existed the state existed the interest could have been transferred and the district court could have made a determination so the district court went back and said so that the english the the the interested exists when make it if mr tanenbaum had died the day before this was submitted there's no more interest the interest absolutely goes away there's nothing to attach to so i believe that what the government is asking and what the district court is doing is reviving a moot case conferring retroactively article three jurisdiction that no longer exists and mitchel be over minute self was there was no duty to render retrospectively the decision even if there is power if the court said it may be entered retrospectively a no proton order should be granted or refused as justice that the death of a party within the context of an ongoing litigation was with with the consequence of v interest being extinguished was more or in that there was nothing in this case that was extraordinary that would stand out that would make the court question what va the result of this was if mrs time and balam had died then the government would have gotten one hundred percent of the of the house and there was nothing that mrs tannenbaum did certainly didn't kill her husband so this was i think probably if you asked her she prefer her husband be here and give away half the house but that's not what has been presented to her so i think that the district court just said i think that this is a plain run of the mill basically that's what she said the plane one of the geisha there's nothing extraordinary about this and there's nothing that should cause me to exercise my discretion to set it aside and i don't think that there is anything that would make that an abuse of discretion and i don't want ok we do have this statement from the district court that towards the conclusion of the hearing this appears that page two twenty nine to the appendix the problem i face is under the circumstances where the order was issued at a time when he had no interest in the property i can't let that  the government well then then then did the district court's order that the property be sold and the proceeds divided fifty fifty will be in effect and again we did represent to the district court below that we would not sell this coming to i don't pretend to know anything much about this is a very well it was an iowa state court case but the court relied upon angle american common law that that relief to the parties right here there's a case or controversy because we contend that under mitchell versus overman the line of cases you do have the power to order the district court to enter its decision no pro