dealing with all of the technicalities is like walking through a minefield it seemed to me but fortunately i think that the strongest argument in this case is the mitigation provisions which generate equitable room in one of the few  blaine owned the other fifty percent mr bain passed away in february of two thousand and seven the operating agreement contained what mr o read and the advisers for their will see thought was a one restricted right to purchase the interests of one is the physical delivery rule which it doesn't seem like you can meet so then you have to go to mitigation which she said was your secondary argument under mitigation you get you get three different elements and it doesn't look like you meet the second one so this is just me i'm not speaking for the panel but at least i'm suggesting that you concentrate you drill right down on to those two things because you only get right ten minutes left standing i'm always uncertain as to how much background we provided but in this instance your own physical be liberal who there is no proof that would be controlling and it's part reasonably actions of the united states we know we can establish when the united states filed a motion for extension of time we didn't oppose it but it included in that the fact that the administrative file should clear up this issue it should show is it postmarked before october fifteenth or afterwards and so then dismiss hoople rearward got very far with the discovery so it at this point we have did you ask for additional time did you file a request that says what discovery you were undertaking needed done or taken away it was important i've forgotten the the rule number that you have to follow to do that because we changed it on me but i think you're over that it's in the summary judgment strategy if you can follow with fifty six if i believe you can get additional t as we did you do it your honor i requested that isn't what the rule says the discovery is not calling up somebody and say hey joe will you help me out here and give me something that doesn't help we're on or what we didn't get there for we put me under this cover or i think the district court issued a scheduling order and then let's assume that that envelope exists within the i r s someplace and that the supposed mark on it obligation to show what that postmark says to your boot your boot and i can't figure out how you can meet that burden when you didn't take any of the formal steps that the rules set forth so what do you want us to do about that leave that it was premature to send it back to reverse the district court send it back so that we could complete discovery to you do you think asked to complete di reconsideration of the decision below did you actually seek more time to do discovery did you file a motion that says they failed to provide discovery to you and you need to enforce it did you do any of the things that have to happen in litigation great detail in my response of memorandum to the court your honor i did not pursue formal discovery in order to file a formal motion to them what's the basis of sending it back to let you pursue that discovery which may or may not show raise that question repeatedly and at the lower court level in there let's assume let's assume that you haven't done what you needed to do to be able to make your discovery argument to us so that it think you just lift left with mitigation but it doesn't look like you meet any of the at least the second element for sure mitigation because you can't show that there's a double payment here this case looked better when you thought both the states had paid and then you found out the other state hadn't paid because the heiress rejected their attempt to pay too so now you're back to seemingly not satisfying the mitigation requirement so why am i reading this incorrectly will your honor be out to start with the consistent reporting requirement under six two two two it has to do with partnership filing that says that the partners most report the items on their individual tax returns consistent with what the illsley or the partnership were term reports in this instance they both did it initially back from the government because of all of these rules regulations and case law that exists so isn't this really a claim against them for i don't know unjust enrichment or something that you paid their share of the taxes and they owe you back in that what this comes down to your honor th of a third party complaint i don't even know what the federal court jurisdiction would be in and in an unjust enrichment theory between the two partners i just i don't see how you can do anything that you've tried to do here i've been practicing over forty five years of the last spot the few years i would personally walk things to the to the post office and get them see just didn't trust the folks i work with mouth about this trust him i just want to be sure i work with someone who was so careful issues in our favor there is no banal but that the were paid their taxes because the two thousand and seven return eight ten eleven thirteen were all approved refunds came back and that we have the one year and because the r is selected to not back to the base or a yes or give us a little promise sovereign immunity you can't sue the government unless the government is consented to being sued the government has consented to being sued in the internal revenue code and is set for the number of these provisions including what they think is this a total one under this mitigation theory if you don't meet any of those conditions correctly or incorrectly equitable or in equitably we're trying to figure out how fanciful but how do we know whether that return sat in that office building mailbox for five days before it actually got to the post office and got the postmark we don't know that without the side is admitting that the court the courtier don't let part ok we've given you some things to think about so we're going to hear from the government and then you can think about those things and respond if you have any additional thoughts or anything you want to say in response to the good morning may it please the court my name is john shewan and i represent the united states first i'd like to know judge mckeague your point is is correct at this stage in proceedings with limitations having run  that was an illegible because of the smudgy way the post office put on it or because it doesn't it's not clear in the scheme and copy it doesn't appear that there's a postmark on there at all but but you know why don't you just give them the darn thing well that you know conspiracy theory to rest oh well your honor of course that you probably know this circuit in doing real well with the heiress right now you might heard about that right envelope exists and if there's got to what would be the consequence in your mind is it if the envelope exists and there is a postmark and it is readable and it shows that they met the timeliness requirements what would be the consequence of that in your estimation as the representative of the united states government well i think what would have happened had not been the case is the iris would have seen that they would have not determined it to be untimely they would have allowed that amended return to be filed and they would have treated it in the way the taxpayers had hoped ok so let's say i'm a little skeptical about i'm from the government so trust us we would have done it correctly so what do we do if today the exists there is a postmark it is readable and it shows that it was deposited time what would you suggest be the way that this case proceeds well was not available for that time then the case would need to proceed again there were getting back to hero is the only reason why the postmark on the original on what was important is because the taxpayers  did not take the very simple and easy step of taking to the post office giving the postmark the patch then and giving the receipt for certified mail postmarked as well if they had done either one of those two things that would have been sufficient and we wouldn't be here we wouldn't have all this briefing and this case would not be before you your honor so i don't think you can place i got the administrative file on a timely basis and when you said you were going to europe you wanted more time to wait for it i can tell you that if there had been a postmark in the file and the trial attorney for the government had seen that and that the postmark was timely he would have brought that to the court's attention that's not what happened here the administrative file was not available when it finally did become available important thing to know for purposes of what we're trying to do right now i mean you know if it became available before the district court's decision and i arrested not provide the administrative file pursuant to would appear to have have it supports the government's case i know but we just you know i mean the problem is we have to just i mean no offense to you sir at all but i mean we can't make that judgment ourselves and boy if this thing filed turned up before the just a court's decision that would seem to be a very regrettable mission by the government to provide it to everyone so that you know we're not having this conversation well again it was a motion to dismiss that's what the district court had to decide and it was the burden for the taxpayers to allege jurisdiction and to take any discovery that they needed to take in order to prove jurisdiction the burden was on them  the let's assume for a second that the way the case is currently pastured they don't meet their burden would you be willing as a representative of the government to provide this whatever you have provide it to mr taylor and if mr taylor can convince the district court of the merits of his position based on whatever you provide him then th normal way as i understand it is the district court contacts us and says that if we allow the proceeding to continue in the district court that the district court intends to rule in such a way if we send it back to him and then it comes out here or comes out if if if when mr taylor gets whatever you send he can't persuade the district court to pursue something differently then then we rule the nuts i don't know how articulately that all that the gist of what i'm asking about and i'm not representing what the other two judges on this panel think whatsoever well certainly your honor will comply with whatever the court wishes to  do in this case however i don't think that the district court made any error there are no grounds for remained in this case this court promptly apply the law and properly place the burden on the taxpayers where it where it should have been you know to boil this decision is based on a mistaken promise that's shown to be mistaken by administrative record that the i r s but you know at whatever point it finally gathered it and it doesn't bring that mistake to the court attention as an officer of the court that seems to be something that's something an officer of the court should do and and ought not we kind of back things up here and see if there was that kind of omission in the district court your honor as an officer of the court i'm not aware of any information in the administrators record which would contradict anything that the district court has held and i think that the district court is entitle to decide the case based on the facts that it has and obviously all this other information in its own side the record in something that was not sought by the taxpayers is just we're trying to avoid situations where the district court makes mistakes because the district court wasn't provided the information that it should have been provided and the rules change a little bit i think one the government is on one side of the case you've experienced that many times but it may be that when you provide th copy if that's the best there is and there is no postmark on it then it at that point mr taylor knows he's screwed you can no longer complain about you've got something that you're holding back from that would help  win his case he just loses and they really go to that can everybody sleep a little better at night then maybe or is this just well your honor i think the the court inclination is understandable but in this situation there were there were no adverse facts that the government failed to produce and there were no discovery requests that the government did not comply with there were no requests from the the district court if the dischord had reason to believe that there was a ministry record would contain a postmark which indicated mr taylor's position that he would probably you know probably have a different outcome down there one way or another the lawyer has an obligation to provide it to the district court and and should and we you know try to remedy that that problem if there's a way we can do that just you know i mean the it's the government on one side here why and why not try to get to the bottom of that well your honor the the district court did not make any findings as to the existence of administrative records or the nonexistence or what was in it or what would have been in it had it been requested or had it been presented to them and we didn't court now if if by i mean i'm don't freak out about this but if somehow things turned out that this suit gets powered up again and the plaintiffs obtain relief would the i r s at this point still be able to collect i think  those four hundred thousand dollars from the other state or are you sort of timed out from having any remedy there well the when the virus  seek payment from the big i would turn payment away right exactly yes this was a situation where the i r s refused pain i guess i'm just on the other side of the equities is the i r s going to be short of four hundred grand at this point  well that's certainly wins this case that's certainly the upshot of what the taxpayers are saying here because they based even under their theory that i ask you if you as as an attorney with the i r s is it your understanding that the i r s would if the all reds hypothetically were to ultimately prevail here can the i r s recover the underpayment from the other state or is it not able to do that at this point that would i would certainly be a risk and given that the and having been short in a windfall being given to the parties here reason that i was asking you if you would be voluntarily willing to do this is i can see when you go back to you're office that your superiors would think the sky is falling because either then you won't be able to get the payment from the other party or are establishing some sort of a precedent that of sudden the i r s will do what's right and they don't want that precedent joking there please you could have any number of reasons why you don't want any part of my of my questions so all i'm asking i mean that the panel may already do this i don't know when it will we'll talk about this later i'm just asking you whether you would be willing to go back to your office and talk to your superiors and let us know within thirty days whether you're willing to turn that scanned copy over to mr taylor if you are then at least my position  we probably ought to wait thirty days or so and see whether mr taylor can actually make any you know do anything with it but if he can't do anything with it then we're right back to where we are right now and at least at least we've somebody's seen the envelope  to quell the court's concerns and frankly i wasn't anticipating this line of questioning but i do have copies right here i can present them to the court right here and to opposing counsel there's not only a i'm not sure i've and i'm bored i understand the end of the right so let me finish so the so the first question before you read us something that's not in the record which i think should be whether mr taylor objects to it if he objects to it then i think we bored with this whole line of questioning and even record considering issues that are not before us on appeal this is more in the line of mediation i think try to get some voluntary action this case was referred to mediation in march that's because there was a you know in view of all the question today would there be perhaps any advantage of sending them back to mediation at this point which i which i might favor more than a to a district court which hasn't been asked i don't see the advantage that your honor i think the government let me rephrase judge defense question for just a second is he's concerned for for some legitimate reasons were all of a sudden your reading of stuff and showing us things that nobody's ever seen what do you think about it going back to the mediator for purposes of letting the mediator look at whatever you've got that mr taylor is in agreement for with i'm looking at well your honor i don't think  if you're if you're willing to show it to us today i'm assuming you're really willing to show to a mediator right what your honor i don't think i need to show you any of this for us to prevail i think we would on the law i think the statute is in our favor i think that negation provisions are are have  been met here and i think we win just on the basis of the record as it exists right now we've got however if there are any questions that this court has i'm prepared as an officer of the court to provide any information i'm inclined to rule on the record and the basis of the issues that are before us and at this point i'm inclined to agree with your position by the way although i think the result here is harsh and as a taxpayer as a member of the public i would hope that the government you know what would give the taxpayer as a break particularly when they don't appear to over the money but as a as a judge i rule on the issues that are properly before us based upon the lower court record that's properly before us i did not take testimony in court from an attorney and i don't usually i don't expand the record of unless there is a consent of both sides  here so i mean you can do whatever you want voluntarily but it's not necessarily a liar to that's all but if you choose to something voluntarily that's your own choice i completely understand your honor and i think you've identified a very important slippery slope here if we go outside the record and if we look at things that could have happened over time we don't try cases a new on the court of appeals and i've had attorneys want to do it all the time and i don't want to do it right good reason we don't so the bottom line is you're willing if we have a mediator call you you're willing to talk to them and consider turning that over right we will comply all your great eve or that we will comply with any any order of recording all that stuff's not in the record it's not something we have knowledge or involvement with  not part of urge you to cater process right i guess the only thing that's in the record is your representation that there is no there's nothing discernible by way of a postmark on that envelope and i think judge griffin is right that that i would suspect speaking for the panel that that we will not take that into account in connection with anything we do here because it simply is not properly before us as judge griffin correctly mentioned thank you your honor and if i had found something outside the record that contradicted what i was going to see in a brief i would not a file that brief as an officer of whom i was doing some take you at your word on that we appreciate your indulgence here this more than anything else you want to say i think we've got it  mr taylor don't make their argument for he just said he's willing to talk to the media here and show them the envelope you've got that you're willing to do that don't say another word that you know if if mediation is unsuccessful the case is going to come back here and we are going to resolve the issues that are presented on appeal but we we think i mean you talk about the equities favor do i think they do we have to applaud what the law says but if they're willing to go to the mediators present this additional documentation in the file i think that's that's wonderful what what we see what happens it here else you know your honor i just wanted to clarify that the mediator will taylor sure to overcome things easy should have done you didn't do it sure got it all right there's a mediation office in this building can't remember what floor it's on you do you got enough time to just get on there right now see if the talk stands but send it jointly if you guys are not in agreement then we're not listening anymore so send us whatever jointly you are an agreement upon either you've settled it you haven't settled it you need more time whatever it may be within thirty days thank you