forty five rather than a form ten forty x and therefore declared that that was jurisdictionally defective in the second cause of action he ruled that with respect to the two thousand and five return where mr cilla pino had claimed a refund based on a two thousand and seven return with a net operating loss carry back to two thousand and five that there was evidence showing that an offset would exceed the amount of the refund being claimed and therefore he granted summary judgment to the government over that case what's wrong when in a situation in which the taxpayer says please we compute my two thousand and five i taxed liability because i want to alter it i want to and and create an additional deduction for the government to look at the whole thing and decide nothing on yeah i agree with that you know in other words the two thousand and five return then being i don't say that it's all reopened not for assessment purposes but to establish if an offset if it's beyond the statute of an offset is appropriate when that's what was done here that is appropriate and whether an offset is appropriate may depend upon whether there are other features of that filing that that need to be looked at again i agree except what  few moments is that the district court used evidence which we would submit to the court was not appropriate for summary judgment and watch which should have more into the decision either in favor of mr saw pino or a ruling that the case at least on two thousand and five should go to trial yes so turning to two thousand and nine and we'll get to two thousand and five the operative fact that we think and by the way the case law is fairly clear the judge the district court accurately stated all the principles of jurisdiction the jurisdictional defect the inappropriateness of using the form one forty five but in two thousand and nine in june of two thousand  the f b i searched executed a search warrant at the company at which mr saw pino as a consultant and began a criminal investigation into the activities of the borg company it was a it was a company that was employing government programs and one particular program the f b i was looking at was whether or not applicants who were using one verified income statements for their applications were being encouraged by after year to somehow doctor their income so that was the gist of it there were no tax allegations there were no statements at the time that tax returns were going to be investigated this was i investigation they had an i r s agent on the case with them to trace funds and money in october of two thousand and ten mr sewell pino filed the two applications that i'm referring to his two thousand nine return with the form one forty five of which petition for refund a tentative refund and then he filed appropriately a ten forty ten forty six ten forty hacks for his two thousand and seven return which carried back to two thousand and five what the agent did when she received this is to put them on hold now from the two thousand of the application date of two of october two thousand and ten it was a three year statute at the end of the three years mr sulu pino would have been out of luck for not perfecting his appeal for doing it incorrectly for using the wrong form huge an issue for you two thousand and four two thousand and four because the application was made in october of two thousand and ten the expiration of the three year statute would have been two thousand and thirteen and that applied to both two thousand and four and five the agent put them in in a hole status for no reason other than there was a criminal case pen why isn't that a pretty good reason it would be a good reason if it involved a collateral tax investigation into returns so that the parallel civil investigation would interfere with the criminal case never knows where criminal investigations go i can see that so let's let's assume it is a good reason there was no contact with the taxpayer no notice that is being held no application to the district court trying to get a freeze of the counts no ninety day response under sixty four eleven of the code no statement that would disallowing your two thousand and nine claim the carry back to two thousand four so conceitedly taxpayers do have obligations in this case mr super filipino and his tax representative who is now deceased made frequent phone calls to the i r s and the response was it's being held after the completion of right on through two thousand and thirteen without knowing that the i r s had prevented him and his accountant from making any changes or from addressing any issues that what nearly a revenue officer would have a revenue agent would have spot you're referring to to the to the the adjustment in the two thousand and five practice correct so turning to what happened in this case in two thousand and fourteen course in the fall of two thousand and four two holding the refund they were holding the case well that's that's a that's a that's an important question because all i can say and we have in the record is that he was being told that the refund was being hell which he construed as and for reasons i'll explain he construed as his claim was processed there was a refund issued and was being held as what he thought of restitution hold suppose he was not misled in that way what difference would it have made well i don't think if he was not ms he was not misled in other words if he was told that the hold hasn't even been process  that what the court's referring to he was told were holding the the case we haven't processed it yet then he would have had an opportunity to revisit whatever it is that he and his accountant didn't already revisit it because in two thousand and seven filed and got ten forty acts in this direction five and in two thousand and nine he filed an application for temporary refund introspective before he did so the courts question i think is a valid one in other words was the file complete when he filed it and in other words if in two thousand and fourteen one year after the statue limitations he said where's my where's my money and they said well your statutes gone and by the way we did process your claim but your papers were incomplete or use the wrong form that's flies in the face of what we say sixty four eleven is all about when sixty four eleven says the i r s has ninety days to respond if it is practicable to do so that's the that's the language that the district court seized upon to say well the the commissioner didn't have to and therefore it's not your stoppel argument is not valid because the burden is on the taxpayer to decide whether it's impracticable well that's what the that's the government's position and you find that odd i do i think when you hol just not going to do it i agree roger and so that's why the hold is the operative is the operative facts here to hold is what caused the statute of limitations to expire which necessitated this lawsuit because in the fall of two thousand and fourteen after the criminal case went away mr philip you know had no recourse your form was no good and you had an offset in two thousand and five which exceeded the amount of your application for a refund now i would just like to turn that to that for a moment we were you able to challenge that in tax court the ruling that that that there was an adjustment  way the revenue and have the opportunity that we did but it was challenge in this way it was a summary judgment motion district court not the tax court and we have a statement of disputed facts and in the statement  together if they had taken it together that was improper and the revenue agent will say that means that because it was improper the it was an extra tax it could have been doing knowing where there was an  you had no evidence to support that two point five million dollars claim in that's the ruling well i think the route you can put it down if you don't get audited then you can skate by him even be valid but if somebody looks at it and you don't have any support for it it's pretty hard to complain if they and if they reject it that's that's the second prong of our argument i know i'm running out of time can't go here so the second prong of our argument is that something else happened in this case which added on to the fact that the government held the return without notice to anybody the second thing is that in june of two thousand and eleven the same i r s agent was involved in the investigation went to  they were in the possession of the i r s and when he read and then they were returned they were returned in such a fashion there were five hundred boxes of records that were given back to him from the seizure of the f e m a records and the accounting records were disorganized the computer that had been taken from mr sewell pino which had some of these records on it was disabled so there were a lot of reasons why i'm suggesting that their answers to each of these findings that the had picked out the two thousand five return for a routine audit in two thousand and eight they had a conversation about this allegation that there was a double deduction taken you know and she claims that mr luly agreed assessment period was still open that was never heard of again until two thousand and fourteen and fifteen when mr sewell pino came along and said i'm going titled i'm trying my refund for two thousand and five and we did and we can test that allegation and we'll show it by way of our core sharing agreement so that's the case in a nutshell your honor i ask any questions answer any questions that i can thank you thank travel at present at our own expense to comply with the directives of the court which were provided to us prior to the lapse in appropriations we do not know when that lapse will end thank you that's restore at the time thank you we've now established that you're here without violating the anti definitions i accepted from furlough for the purposes of this argument yes we have two tax years issues here two thousand and four two thousand and the district work correctly held that there is no basis to issue a refund to the taxpayer in either year in two thousand and five that's because there's no overpayment to refund in two thousand and four it's because there's no jurisdiction over the refund claim because no form ten forty x no amended claim seeking a refund for that year was ever filed what was filed and i'll speak to that your first what was filed was actually a form ten forty five which is a tentative request for a carry back adjustment section sixty four eleven a of the internal revenue code enabling treasury regulation both make absolutely expressly clear that that is not and cannot be a claim for refund that particular form on which taxpayer seeks to rely on what purpose does it serve expedite refunds that would then later be sought to provoke just put money back into taxpayers hands basically in the depression times when they needed a quick needed cash on hand but the put the the statute also makes clear that that presumed ninety day period of action the hostile take that but the hurry to get that money back to the taxpayer is only at the statute reads precisely the secretary shall make to the extent he deems practical and to prevent this that's the secretary that's not the tax payer who's making the determination of practicability this doesn't seem to impose very much of a burden on the i r s you can do it if you think it's ok if you want to do it no one is suggesting that processing this request was burdensome to the i r s but the i r s was doing was hands off while law enforcement was touching these exact entities first guaranty mortgage saratoga venture capital drug risk solutions these are companies that are adjacent to taxpayer and with whom he had business dealings and to some extent control impracticality is that is that you didn't know what m turn up in the in the criminal investigation which could which could affect the ordering of these terms or cisterns for certain and moreover you also don't want to get in the way of that you don't want to be taking custody of documents that they need and you got them when they need them whenever you did take custody of all the documents not to mention that you mix them up there was  the record reflects that the subpoena that was served on the taxpayers power of attorney in two thousand and eleven was part of the criminal investigation it wasn't the revenue agent going around law enforcement attacks of the revenue agent suspended her investigation in september of two thousand and nine and did not reopen it until december of two thousand and fourteen so all of the documents that were taken from taxpayers adjacent businesses and his premises were done by law enforcement and not by the i r s the i r s didn't take action and the taxpayer disingenuously suggests that he was not on notice that the i r s was reserving action on this in fact he repeatedly called them and he actually seeks now to have this court hold that those contacts plus this form that the he was well aware because he was told every time he contacted the i r s that they were not going to move on this until the criminal investigation was done they were holding it the the what was going on in the exam would not be released until the results of the criminal investigation now the u s attorney decided not to prosecute in auk in august of two thousand and fourteen and in december when the i r s learned they reopened his file and that's when he received the notice that he now c s the as a practical matter this sixty four eleven ninety day period had no effect on the i r s is in action all the way through twenty fourteen had no effect on his ability to file a proper refund claim within the three year statute of limitations any time from october two thousand and ten to october two thousand and thirteen he could have filed a form ten forty x for two thousand and four this is his individual income tax that's his personal dealings his that are supporting his claims of individual income and expenses on his individual tax return were not under investigation it was his businesses or of the businesses that he was involved it which were under investigation he retained the ability to file a two thousand and four form ten forty up to and including october fifteenth two thousand and thirteen he did not do so and nothing the i r s did prevented him from doing so so he should not be heard to argue that it was in any way prejudicial to him that the form ten forty five was not treated as a refund claim or that he did not learn of the disposition of his two thousand and four refund claim until twenty fourteen turning to the second tax year two thousand and five that is a year that was timely filed and the at the same time as the form ten forty five so clearly he was able and had the capacity to file a form ten forty x and as as judge jacobs has noted he has the ability to file a subsequent amended ten forty x if the first one was incorrect he knew how to do these things he had professionals working for him in two thousand and five where he did do it correctly he claimed a carry back of a significant amount over a million dollars seeking a refund ultimately of about a half million dollars which was denied because the service then reopened his two thousand and five return not for the purposes of collections because those are time barred but for the purpose of computing his overpayment precisely and it  so doing that there was no overpayment that he had in fact under reported his taxes by somewhere in the neighborhood of four and a half million dollars and this is not an evidentiary question it's declared on his return and to the best of the court's knowledge he was entitled putatively entitled to claim this expense due to an agreement that he had with this entity that he had no ownership interest and possibly had some modicum of control over that entitled him to claim some of their expenses on his personal tax return that's also setting aside how one incurs a four point five million dollar cost of goods sold expense in a mortgage brokerage but that's not before the court what is before the court is can he substantiate this deduction on his individual income tax return the district correctly held that he could not there is no evidentiary question that maybe some additional evidence would explain that better he had the opportunity to present such evidence on summary judgment and did not do so the district court correctly held that having failed to substantiate this expense he then was left with a deficiency on his two thousand and five tax return what that meant was that no matter what kerry back he was at because there was some dispute as to the computation of the carry back loss from two thousand and seven no matter how much money even if we gave if we gave the maximum proposed computation for the carry back it would be if you have a one point four million dollar kerry back that's if you have a one point two million if you have a one million no matter how we compute the value of your carry back laws it's going to be less than four point five million dollars therefore you have no over payment therefore there is no refund to pay out to you and granted summary judgment in favor of the government on those grounds and nothing the taxpayer has presented today undermines that decision which we submit is correct and if the court