them immediately and notified them to the statute of limitations had expired and they failed to do anything with this information and they still forced the taxpayer to file a petition aquash and what's most disturbing about this case is the i arrest it's been system and and whether you know they took a position and when they filed an answer which is what i believe they could be arguing courts have rejected and basically said that that's generally the case but instead situations like this you need to look at that point they can say their position was substantially justified i would even say at the time that they received notification the call the phone call they received notice at that point in time that the statute ha chronology then on six twenty nine and i believe that's excerpts of record eight the attorney belong with a just record case contacted the other side and ask them to fall in terribly that there was the statute of limitations issue excusing your honour's if you look at that phone call your forty six forty seven in the record the discussion of it the attorney stated that he believed that in his opinion there were problems with the summons including the statute of limitations it's clear that the  would have needed time to investigate those claims and determine if in fact they were correct and three days later the petition to quash needed to be filed so that clearly wasn't enough time and we know we're not the titian would no i would disagree with that your honor we discussed that in the brief under the third party summons we believe that they did correctly serve them and service was made it just wasn't in one case received it was return but we just got that in our brief and would you like me to give you the pages  summons to recognize that there was a mistake and corrected its mistake but is there no remedy if if the i r s doesn't do it due diligence and if they are and you have records requested that are wildly beyond any statute that i don't know your honor i don't believe that there's anything in the record saying anything other than there was the statute of limitations i'm just asking you in general is that would that mean justified and it was in this case and that takes into account timing they didn't take a position what the government did was it recognized that there was a problem and when it recognized that it remedy the problem as soon as it could  it does your honor and if you look at the cases that we've relied on they take the position that the government is has not established a position until it actually answers which implies that there is time up until the answer is final for the for the government to examine what its position is and why don't of the petition to cooperate and determine in fact what should occur but i think case it's a deal with the situation of the wrong wrongfully issued summons i don't i'm not aware that there are impression i wouldn't say it's entirely a first impression i think that hofmann and donnelly give a clear guidance here that until the government answers or actually does take a position it has that time to in fact  words are just talking with you about and you're saying well then there would be counter motions and you would see if you were justified my question specifically is in that case if the government were not substantially justified do you think that sanctions would acknowledges the mistake early on before any answer before anything is going down the road that that in effect lets the government off the hook under the statute i'm going say i think letting the government off a hokus a bit of charged language with respect your honor but i think what we're letting you off the hook for are any claim of attorneys fees and there shouldn't be any liability on the government's part because the government has to have time to investigate and determine whether the allegations of the taxpayer are in fact true and it may be that there is something as apparently this case that the government was not aware of the face need to determine in fact for themselves the position of the taxpayers correct and that was the time frame that they took to do it they didn't take a decision they acted they acted first to resolve the issue i think all the other arguments are covered in our brief unless there were any further questions that the government was unwilling to come forward with any information the petition to caution we would have been required to do that and also i would mention as an aside because this deals with the tax treaty request it may be that a lot of this information is government's argument they are saying in essence they were justified that they needed time to to respond to the phone call but i i presented  facts and circumstances and the problem that i have and they don't have more than three days well you know they may have more than three days but the problem here is that the government really not only fused to withdraw the sons and forced  and the fact that you're up against a statutory filing date that the government should have done something within three days they should have done something and i think they should have done something within three days because on the very face of the it's not necessarily a rigid test that you look at all the facts and circumstances and what happened here is we prevailed the government had the burden of proving that its position was substantially justified it put on no evidence that if you  recently and we say under the new law have snuck the case ok well then if if they can you say they should have done something in three days but it's not exactly that rigid so the only thing that happened between the time that the pati unjustifiable pondar and basically the point of the statute is this that if the government is going to that then though they change the law and if the government is going to issue some excess and if it's going to ask for information but shows that we were subject to considerable tension harm which which happened in the reason we were forced to file a petition is because statutorily did not that information would be turned over to the russian authorities i mean you had to do that in order to preserve your rights yes yes or we had to do that to preserve our rights we had no choice so we were forced to do it that still doesn't mean that i had to necessarily send a letter in the letter that i did so asshole kinds of information only action that was taken after the petition to quite well but in terms of that was one action that was taken but we also encourage attorneys fees in connection with the union with our clients and the now written we prevailed and if they wanted to avoid the position that we prevailed they would have to come forward they had the burden show that their position was substantially justified and if the government believed that it needed time and it needed sixty days to determine essential limitations it should have put that evidence on where you're mixing apples and oranges here question was whether the government had to do stablish it that substantially