one of the internal revenue code requires notice of particular third parties that the i r s intends to contact the first reason is that what the statute actually requires is reasonable notice in advance to the tax requirement what it requires is that the iras provide reasonable notice that there's a possibility in the context of an audit that the iris will contact not only the taxpayer but the taxpayers neighbors employers exciter or other third parties so that notice always go out yes it goes out as part of publication one and typically publication one is included with the very first letter that the taxpayer receives so it's a notice that the taxpayer gets when they when they find out they're under audit and its publication one is a document that really sort of sets out the ground rules it both talks about the taxpayers rights and it sort of sets out the ground rules to say these are these are sort of the the rules that operate  and includes in that you know the notification that the i r s can contact third parties and that's always meant to say if the areas can contact three parties you ought to know that that's a that's the purpose exactly and  it's it's it's given to the taxpayer also at a time that's it's quite often not long before the i r s requests information and documents from the taxpayer him or herself which was was the case here i think that there was a good information document request made to the taxpayer about two months after that publication was sent and so when the when the taxpayer is deciding whether to provide the iris with the information and the documents it's it's requesting the taxpayer is deciding that with an awareness that the iris does is able to contact third parties now let me ask you this did the i r s used to have a different practice it  the that was was actually contrary to what congress expected if you if you look at it if you look at legislative history the conference report that goes along with that language in the statute that was actually and acted said that it is intended that in general this notice will be provided as part of an existing iris notice provided taxpayer didn't say publication one but it's it seems quite likely that that reference is a reference to publication one which existed at the time but  in practice how does the i r s decide when to provide additional notice yun publication one and does it have anything to do with how the person being audited response to notification of a god it is there like a list of criteria guidelines internal policy that they i r s follows in determining when these additional letters  does it depend on the person handling the odd it was purely discretionary your honor i would i would say two things in response to that point one is the the the general practice of the i r s currently is to provide the notice as part of publication one and not to provide standalone letters now in some circumstances the i r s can provide letters and so it's certainly not prohibited from providing more notice of the i r s can also tell the taxpayer particularly what information it as you discuss where the i r s provides notice beyond that when it contemplates reaching out to third parties so my question is what are the circumstances how does tyrus make that determination as to when notices additional notice statutory obligation here and the statute is written in an interesting way the statute says you may not contact these people these third parties and less you provide reasonable notice in advance and the word reasonable and of itself is a flexible term reasonable has to ingest to circumstances what's reasonable is not just reasonable notice it's reasonable notice that contacts with third parties may be made and so it in our view that means that the reasonable miss requirement is the notice has to be reasonably calculated to provide to let taxpayers know that third party contacts are a possibility and i would say to that it's important when reading the statute to read it in context so here you have to sort of pared notice requirement you have subsection c one which requires general pre contact notice and you also have subsection c two which requires specific post contact notice the iris must provide a record of persons contacted post contact and the legislative history is also very informative here because the initial proposal from the senate was a specific advance notice requirement that was that would require the iras to tell the tax payer specifically each  particular third parties that it intended to contact and congress ultimately rejected the notice requirement in favor of the bifurcated general pre contact specific post contact notice requirement that it actually ended up in acting in the which which is why general pre contact notice specific pos them read it differently there's let on and there are reasonable courts and they're reading it differently are you aware of any added circuit authority and that's yes and we've cited in the various briefs first in that in in the initial brief and then also in the brief which i'm not sure this court's going to consider which is the whole am because it replied to the proposed and his brief but i believe there are a either eleven or twelve just reports that have decided this issue other than the district court in this case and every single other one besides the district court in this case has concluded that publication one provides notice that satisfies this subsection c one advance baxters and i wanted to start out by noting in answer to the court's question earlier these audits have been going on for over five years and the summons for the two thousand and eleven taxable year was part of the national research project and that is the summons that is before the court today we believe that this issue is really very simple and straightforward and it is based upon the language of the statute itself the issue here is whether as the court has already noted the notice given to the taxpayers under publication one was reasonable and to the circumstances very simple very simple straightforward question and let's turn to the statutory language now section seven six zero two is a very typical authorizing statute it starts out in subsection a with a very broad authority granted to the i r s to submit summonses it then proceeds in subsequent subsections to limit that authority and to state the conditions upon which the i r s must meet before exercising that authority and part of that is the notice to the taxpayer found in subsection c one which person other than tax payer with respect to determination collection of the tax liability of such taxpayer without providing reasonable notice in advance to the taxpayer to contact a person other than taxpayer may be may so it doesn't fall through and say that may not contact any person other than the taxpayer without giving reasonable notice that that person will be contacted well your honor i don't believe that this is ambiguous in any way i believe that the language is reasonable notice has been interpreted for probably over one hundred years to mean what is reasonable under the specific circumstances of the case and it is the language is somewhat general but it's not ambiguous it clearly says that unless the i r s provides reasonable notice to the taxpayer in advance the i r s and they may not make contacts within the third party or  you you you would say that there isn't one notice is very important because they could have said without providing notice in advance directive taxpayer and by putting the word reasonable there that was issued to the taxpayers employer which happened to be the supreme court of the state of california for this attorney who was appointed by the california state supreme court to represent indigent defendants in death penalty cases but isn't this a slippery slope if you are trying to determine reasonable notice in every case and yet every case is somewhat different of course how do you get to a point of having defining the parameters of reasonable notice in a way that that can and can be followed i mean first of all i don't think the court has to get to that question here because the question is was it reasonable under these particular circumstances but second of all i think it would have been very simple for the i r s to have crafted a publication one generic notice that goes out to all taxpayers that says look we might contact your employers or your banks we might talk to them we might contact them in writing we might issue a summons the ford summons is never mentioned in that particular part of publication one and yet the notice is required under the summons authorizing statute the very role that says publication line as written is never reasonable price you know you're asking for in certain circumstances they need to do more so they are kind of lying would you draw here like what are the circumstances the circumstances are that in this particular case the i r s served this generic publication number one two years prior to the time they served the summons on the california state  we get these notices right now and reads well we hope that people do and i think the law presumes that we do but in this particular case what the publication one says is we may talk to third parties it sounds very innocuous very innocent i said telling you that your your employer is going to be required compelled by judicial process to provide information about you which and actually issuing a summons to a taxpayer's employer and as was noted by the taxpayer advocate in two thousand and fifteen and again in two thousand and eighteen there is a very potential very strong potential of harm to the taxpayers reputation particularly with the taxpayer players situation where you're you're you're appointed but you're not really in your ploy but you're also appointed and you need to be in a certain category of people in order to be eligible for appointment or asked particular situation and add to that your honor looking at the documents that were requested from the california supreme court they were documents they were billing records and they were correspondence and other documents that was the language that was used by the summons relating to mr backs representation of indigent clients in death penalty proceedings and those documents the district court found could  potentially reveal mr baxter's litigation strategy and his confidential communications with his client so the gravity of what actually happened as compared to that very generic innocuous innocent sounding notice of publication craft a generic now that is would comply with the statutory terms i am saying the court doesn't need to get to that conclusion but i believe that that is entirely possible that giving the taxpayer simple notice that because here's the thing the statute is prohibitory unless the i r s notifies the taxpayer that it's going to do something it can't do it it's notice to the taxpayer limits what the i r s is authorized to do under the statute so when the well we might talk to third parties then that's what they're allowed to do they're allowed to talk to third parties they could have picked up the phone and called the chief clerk to verify mr baxter's employment or how much they paid him and  cetera but to actually issue a summons is not included in the language of the publication and that's why we believe it was not reasonable under these circumstances and it would have been easy for the for the i r s to do your honor just a few points one is i think that the question of reasonable this is if the the word reasonable in the statute were to be interpreted as kind of an empty  we might subpoena your employment records we my asked for things that maybe privilege demands or your privilege well i would certainly the publication one could be written differently but hearing for us to say your argument is that this exact publication one as it's written as it is written today and who knows who wrote it or whoever wrote it is will satisfy the statutory terms and or any circumstances we believe that provides general notice that third party contacts are a possibility with that which is what the statute requires and i but i would like to make one by one to think about rewriting it so it's more real well i think it's written it's supposed to be written for you know for non lawyers to say third party contacts are a possibility it's not i don't think the statute requires the iris to catalog every possible method through which it will taxpayers get additional very specific notice when it comes to someone says that they don't get in other kinds of third party contact areas where that notice allows them to challenge the summons as they've done here let me ask you this it  let's assume that we take the word general notice to mean just that ok so you do it you can do it before hand you don't have to name everybody you're going to contact let's assume that for a moment it still could be that that the publication one may not be adequate to give that general notice which is require reasonable  notice and i think that's that's something to think about is that even if the notion is that you can and you are not required to give the names in the energies that nevertheless when you give  reasonable notice given the different kinds of ways in which people may be contacted some much more intrusive than others they ought to at least be some listing that those possibilities i may come up in a particular case i would submit that that goes it requires but but but yes but i do want to make just one last point which is ask that this case the the these the taxpayers are arguing that they shouldn't have to give the iris these documents at all the documents that are the subject of the summons so this is not an instance where the taxpayer is saying well if you would let us if you would let us know first we would have provided the documents and then you would have had to go through the talk to third parties this is an instance where the taxpayer's position is you surgery and so perhaps there's some redactions need to be met certainly it was a different issue but my point simple point is that this is this is not a case where the taxpayers have offered to give the iris the documents or the touch taxpayers didn't have an opportunity to give you up u s versus lee thank you very much counsel