section twenty four sixty two bars an action suit or proceeding for any and forstmann of any civil penalty amounts to more than five years after the claim of chris the question presented to the court has far ranging consequences well and low income taxpayers not those just who are accused of promoting tax shelters but to any taxpayer who may face a forced collection of onerous penalties many many years after the alleged misconduct has any court ever issues considered it in the early ninety's before the supreme court's opinions in the galley and you know those those decisions relied on a presumption that the government gets preferred status concern about jurisdictional because ninety two and that recertification of the order resetting the clock yes has the supreme court and balls made pretty clear that equitable exceptions can't be made to jurisdictional limits and everybody agrees that in twelve many to this is jurisdiction claims process in law and it seems to me that this process of recertifying in order to restart the clock is just kind of a way around the district court's inability to extend the time for an equitable reason should be considering this appeal at this juncture the alternative of course would be for mr good's to get to appeal this at the end of his case after a final judgment can make a choice which i choose to enforce actually section sixty seven hundred penalties or by excitement when congress gave the i r s that power to enforce my assessment it did not much like a complaint it gets filed in court and the person the accused in the in the complaint seeking penalties must either declined or they can choose to do nothing and if they choose to do nothing then the government has to return that's not initiating an action suit or proceeding for purposes of twenty four sixty two and it has nothing to do with a penalty and it's just a penalty assessment like this is very much akin to any other charging complaint in order to show cause any other method of charging up penalty imposed by a government agency  another argument that i think is worth talking about it's the government's position that congress otherwise provided a statute of limitations and there are a lot of places they look to argue that congress otherwise provided a statute of limitations but they didn't you know congress used at any time language in a number of other places in the code including in the penalty provisions that served as the model for section sixty seven hundred and they didn't would also note that there would be no reason for a discovery rule here because the i r s began its audit of this exact conduct in two thousand and five when it was occurring so so there wouldn't be any possible argument that they didn't know that the penalty terms of art in their respective code sections and assessment as your honor noted is essentially a bookkeeping notation it is the official recording of the fact of the liability in the books of the secretary of the treasury now we pointed out in our opening brief that the iraqi is required to make an assessment of the tax that is show on a tax return so for each of us who have filed a class return we have been subject to an assessment by the i r s in each and every year in which we file the return now if we were to fill out say any bar application or a loan application that asked us a question have you ever been party to an action suit or proceeding brought by the government you would not think to answer yes to that question because you have been assessed for tax now for counsel's part i understood her argument on reply and her opening argument before this court to mean we're not going to say that those kinds of assessments are an action suit or proceeding we're just going to say some assessments are a the problem with that is that the assessment is the same regardless of type of tax or penalty incur section sixty six seventy one says that a penalty is to be assessed and collected in the same manner as a tax the other problem with that is it doesn't deal with the problem of how to and how this would apply in other provisions in title twenty eight a i mentioned the phrase action suit or proceeding is also a term of art used throughout title twenty eight we found the exact phrase was used at least fifteen times and we've pointed out that in some of those cases it would make no sense to refer to that as a proceeding or toothbrush referred to an assessment as an action suit or a proceeding one of those being the district courts having riginal jurisdiction over any action suit or proceeding in which the united states is a party well the district courts clearly don't have a original jurisdiction over tax what that means is that in the structure to the court hearing the case that if that case were not brought before the court within five years of the conduct of crewing then it should be thrown out now there have been cases that have sort of expanded this to me not just judicial proceedings brought in district courts but it ministre the proceedings brought before an administrative law judge least identified that you had a complaint you had an answer you had pleadings motions depositions other discovery hearing evidence introduced findings and oh and a final decision the fact of the matter penalty is always a it's to be sure it has an effect but it's always subject to challenge later in court it just so happens that in tax cases as opposed to in in most cases where the government asserts a penalty they have to bring an action to oppose the penalty they have to file suit either in district court or file an action book war and a l j before the so that's that's why taxes are a little different than these other penalty cases on which the appellant's rely and that's not an argument for tax exceptionalism that is just pointing out the fact that in tax tax cases are in that sense different i think that appellant's concern about the i r s being able to assess things indefinitely is really a matter best left to congress there are certainly cases were some movement between the examiner who was looking at these cases the transaction itself was somewhat complex it involved distressed chinese debt and a series of partnerships that were sort of stacked on top of each other to enable giant losses to be passed from offshore into d s to domestic consumers be able to offset their tax liability that way  typically the procedure in those cases is to proceed against the partners or the partnership course for the individual taxpayers and then later on to go after the advisors concocted the scheme so it so it's about at the but it's you know it was it was i think they could they say that we had enough information these kind of liabilities is actually a good thing the appellant was requesting a hearing and and requesting and requesting to dispute this matter before the sort of medicated by the fact that you know the iris has the burden of proof and any proceedings to perspire and it proceeding imports that respect to a sixty seven hundred penalty so the risk of loss of you know the clients who were sold the abusive tax shelter not made it i don't know about this particular self there have been and in many shelters the clients themselves will either you know not file a return on the basis of the representation of the tax shelter promoter they may they may have a gross valuation or they may have a substantial admission from gross income in any of those three cases it is clear that the tax for the client kit may be assessed with any time so the upshot of the the argument being raised here on appeal is that whereas these clients the people who bought into the shelters they may be assessed at any time or were for periods longer than the five year period contemplated by twenty four sixty two their argument is even though these clients are still on the hook the shelter promoter should get off the hook and we think of that you know as it makes more sense to go to a line those more exactly but anyway that that is the practical effect of the ruling sought by power here process doesn't take away that fundamental nature of the assessment being the equivalent of a suit and so i would recommend rereading will because i think it is really truly fundamental and important on this issue civil penalty and any mode by which the government exercises that penalty enforcement power thank you very much thank you i thank you both counts