assistant attorney general it to me clark archer whom you met yesterday and behind me as governor john dion who unfortunately has to leave before the argument is over today this case is important to the virgin islands government not only because of the revenues at stake from the taxpayers here but also because of broader financial and institutional concerns that i'd like to address briefly before discussing what we view as the four legal errors that are of greatest concern to the government financially this case is of substantial short term importance because it's the first case to address in a civil tax proceeding the application of the preety two thousand and four statutory test for vi residency so the court's analysis in this case will likely affect scores of other pre two thousand and four cases that are currently pending either before the i r s the tax court or the district court for the virgin islands and in which the i r s has challenge taxpayers claims to be bona fide b i residents and in which potentially hundreds of millions of dollars in tax revenues are at stake is it doesn't involve exactly the same issues that it involves the taking the same tax system and institutionally this case is even more important in the long term because it gives this court an opportunity to address the second of two daggers if you will but the i r s has an at the government's economic development program a program that depends on the virgin islands government's ability pursuant to sections nine thirty two and nine thirty four of the internal revenue code the federal code to offer tax reductions to us citizens who invest and take up residency in the version eyelets now in appleton this court addressed the first of those two efforts by the i r s which is which was an attempt in this court's words to do away with the usual three year statute of limitations for taxpayers who participate in the government's economic development program within the normal three year statutory window there would be no risk of double taxation but this case involves the i r s a second dagger which is an ongoing attempt in a variety of ways to impose standards for vi residency that are in fact stricter than those that congress itself has imposed and in so doing to deny residency to people like the vento is who are the very kinds of entrepreneur that congress sought to draw to the virgin islands when it authorized the economic development program in section one thirty four of the code and and that affects people who by the way like the vento those  continue to make the virgin islands their principal home to this day so with that introduction let me briefly address for specific components of the i r s is attack on residency which when adopted by the district court gave rise to distinct legal areas that we think require reversal now one important component of the i r s a strategy with respect to residency is its effort to abolish at least as to that question the presumption of correctness and the resulting burden of proof that ordinarily favor deficiency notices issued by the agency charged with collecting the tax and as a general matter that presumption of correctness has has been well established since at least one nine hundred thirty three in the supreme court's decision in well first versus helvering but what the i o s keeps trying to ignore and this is relevant to the discussion you had yesterday what the i keeps trying to ignore and what seems to stick in its craw is that in section one thirty two seat two of the internal revenue code congress entrusted the virgin islands government not the i r s with responsibility for collecting federal taxes from virgin islands residents and we're viewing their returns in the first instance and yes the i r s retains the right to disagree with the b i r b i r s judgment but it has to do that within this the three year statutory window and one consequence of congress is decision to make the virgin islands government the collector of federal taxes for vi residents is that the determinations the vi government makes are entitled to a presumption of correctness and that presumption was with terminations is to what is determinations suggest respect to a legal question like residency is something to which we should defer to places your honor first of all current congress made the decision to confer that authority on the virgin islands government in of correctness is to what can you can you show me either statutory language or any cases that suggest that there is a presumption of correctness that attaches to a determination of residence i don't think the issue has ever been addressed taxes and so forth certainly are magers within the realm of agency experience and expertise that's right i'm not sure that the determination relative to residency has the same substance to it or is it any way the same subject well the presumption of correctness as it's been articulated in the in the case law is that  is that the tax that the collecting authority imposes or says is due is entitled to a presumption of correctness that is that the tax that the agency says is due is in fact do well if you if a case like this  the residency determination underlying bad assessment was wrong then the tax that the agency says is due isn't in fact due and so i think this is a matter of logic and first principles the presumption necessarily includes today we have the outlines of an agreement by virtue of the of the two thousand and four act which which tightened and modified the the requirements for residency i don't know that we have an agreement as to how and that and that was the basis on which the b i r made its determination that the vent those were in fact residence is there any reason why we shouldn't it here to back so that circuit test this discourse as i know and i cast is there any reason why we shouldn't know your honor we think we think that that's perfectly appropriate all right and both sides just trying to see just to agree with that i'm i'm interested in a a follow is section seventy four ninety one a one right right the taxpayer go right and well specifically with respect to the burden and how evidence radical secluding to the language of the statute is presented and consider right you see where i'm going with this because for the life of me i party specifically press seventy four not why it was worth it in my next before the judge but it but it does apply as a matter of law but but the b i r did argue that the government had that that the i r s had the burden of showing non and the presumption of correctness is consistent with that now another component of the i r s is attack on residency here and in other cases is the idea that a desire to limit federal income taxes somehow undermines bonafied residency and in fact the whole point of section nine thirty four b which i mentioned earlier and the economic development program that was a stablished and authorized under it is to december thirty one two thousand and twenty well people rushed efforts which is slower as i can tell from the district court's determinations simply had not been sufficiently complete it to war determination of those things our our problem with that analysis is the district court used a a motive to reduce taxes as a reason to to find the taxpayers explanation than the christmas party look different that it may have looked if there was no motive to reduce taxes i mean i don't understand why that can't be part of the mix it certainly can't be determinative in any way but you're saying the judge can't even consider that well we think to the extent that the judge considers those kinds of motives is undermining congress's intent and setting up a system that allows taxpayers to get to get tax benefits for moving to the virgin islands and setting and setting up businesses here and so at a minimum it's an area where courts need to tread very carefully and avoid doing the analysis in a way that we think that this record dead that sends a message to other taxpayers other potential participants in the economic development program that if you come here and try to take advantage of this tax program the i r s and perhaps the local courts are going to fight you tooth and nail  reason the message just that if you want to take advantage of this then you need to make sure you are a resident as of the summer thirty one two thousand and one and you need to accomplish the goal you can't sort of accomplish the goal well take steps toward accomplishing the goal but the problem we have in this recourse analysis is that it is that it went further than that in fact that this is a court's initial opinion relied almost entirely on that on the desire to reduce taxes and it was only on a subsequent amendment looked to me like the corrections were in substantial factual well in the footnote change the whole change the district court's whole theory my question of how of why of of how tax motivations matter his or his initial suggested they knew about he also indicated in that footnote that by the time of trial they did not and is when they testified in trial was when the credibility determined she's right but but the problem was the legal  i am i correct in my recitation i think that is that is a fair description of what he did the problem with that if like if i could quickly answer before i put the problem and it's on the copies thank you  the problem with the with the court's analysis there was that it was it went beyond simply saying i'm going to take this into account that it it was crafted in such a way that it sent a message we think to potential participants in the economic development program that that this is that is going to be very hard to establish residency and that we're going to look closely at your tax motives for doing that  realize we're not talking about a home we're talking about residence but one of the problems here i think as far as the district judge was concerned is that when many people live and going on in that home there was a substantial record of incomplete ness relative to preparations and residency in that very property wasn't well the question is did they intend to be residents of the virgin islands as of december thirty first and so really the best evidence of what their intentions were as of that date was what happened the next year and i know mr dershowitz is planning to go into the record on exactly where they were put in more detail been pointless however evidence property was was not even considered particularly habitable well that to the extent the district court found that the property was not habitable we think that's a flat out clear error based based on the evidence in the record and i know mr dershowitz dershowitz is going to talk about that some more but but there is no factual support for that and when you look at the evidence the district court cited in support of its finding that the house was not habitable it simply doesn't support the conclusion the home inspectors report and the home inspectors report nor mr thomas testimony mr thomas's testimony was that the house was fifty percent livable which means it's livable it's a large house that is fifty percent of it is livable a lot of people can live there i want to briefly touch on the two additional legal areas that we wanted to present one of which is effectively requiring taxpayers to give up a second residence in order to claim court made was in saying that maintaining another residence in this case the residence in the vatican is highly provocative of the taxpayers intention to have a residence in the virgin islands and the reason that's that's problematic is that it's maintaining another residence is highly probative of whether you have adopted a residence in the virgin islands that effectively destroys the legal right to have to have residences because it because it says to taxpayers who are contemplating the move you know if you if you may maintain any significant ties to a prior residence that's going to be disqualifying and we think that was a legal error that the district court made the final one that i wanted to mention that poses an institutional threat to the economic development program is the district court's treatment of residency evidence from years subsequent to the tax to the tax year in question  it is undisputed that mr and mrs vento continued to make the virgin islands their home as of the trying time of trial and indeed early in the trial the irises own counsel admitted that mr and mrs  crossed the line of moving from nevada to the virgin islands sometime sometime in two thousand and two and that's at page five seventy seven of the joint appendix and yet the district court never considered that evidence  or the fact that the bentos were still residing in the virgin islands virtually fulltime as far as i can tell as part of his analysis as to what their intent was at the end of two thousand and and one and so for three each of those reasons we asked the exceptions the first one is in answer to judge the heart of his question i think the real criteria and that's on the question with respect to this i think first with reese the the actual guidelines are within the regulations and the regulations provide that so long as it's more than transient or some journo's now how you interpret that has never been decided by this court dealing with one a different statute and two you're dealing with a a different concept and a different objective and if you look at the unique attendant circumstances which s talks about the principle ones you have to look at of the language of the statute and the intent of congress those are the critical criteria and if you take a look at citrix what happened there was you had a requirement of an interrupted and interrupted as part of the statute residency within an area and what you had actually there is that the time life employee east spent only twenty five days twenty five days in the city that he was ultimately determined to be his residence he used that place to travel all around the whole area and did his job in any and a number of different and i don't think we disagree with many most overwhelming them of maybe four or five but together they were two essential findings the court made which were critical one is in footnote seven the court indicated that to the extent that someone someone of the claim is that someone must be a resident in order to take advantage of the economic development program he said that was incorrect well the court was wrong on that so what he did was he questioned the whole motive without the the fact that the witnesses testified to which was the motive for coming to take advantage of the economic development program so that is a critical area of war that pervaded the decision see just from the are have a tax exemption in filing those taxes in the united states so that there is a loss of income to the united states granted by congress here the motive or the circumstance is exactly the opposite here congress is encouraging people to go and live in the virgin islands to advance the objectives as quote seven appleton of the virgin islands with what the decision here did with this interesting is the court in a footnote went through the american express deals and listed the times when the venters were not in the virgin islands but if you go through those same listings and he did a security analysis you see they spend more time more time in the virgin isles than anywhere else they have a case and during that part of the period of time they were out on business trips part of the time which is in fact what happened with secure so taking a secure approach to the facts and looking at it from the point of what was their major place where they were spending more of their time than anywhere else from august second to the year end at least as to richard and and lana they clearly spent more time more time in the virgin islands than certainly enough data then certainly in hawaii and certainly anywhere else the net effect of the court's type of determination is there not residents of any place and remember the standard is a very very low standard first under the regulations but more than that it's a congressional objective to try to transfer funds from the treasury a method of transferring funds from the treasury to the virgin islands and encouraging the economic development of the virgin islands so if you look at such sure you must take those factors into consideration i'd like to just mention it before you mr richards i've a very practical question you have the details of the finances certainly better than i do let's assume for a that question and i have to tell you that i have troubles entry because it premised on the nine million dollar figure that was thrown out by the i r s during the discussions which i don't see the basis i can i get ahead on how that figure came up because is an agreement on some of the items is agreement on others i think the practical effect may be relatively limited and therefore if you make a separate determination as to richard  the primary for which a lot of the primary savings will occur and if you separate out the daughters it won't be that economically significant but i think you also have to make a clear distinction between the that's the case why would you even try to fight the fight for the daughters in the near cases are markedly weaker than mr and mrs iyer great accept that i think the decision has to be made as to how you treat students under the circumstances to the extent that the court looked at denver look at boulder colorado there with her boyfriend but she paid out of state  taxes i don't know about your honor but i know a lot of students who live in other places but that's not their residence so no derivatives this is gail i guess we're talking about the she was derivative we in nevada resident while she was a student call right i don't know  the daughters from the parents is immaterial in your view not immaterial it's all different but not as significant would be suggested by the way the decision was written and i would like to also separate for a moment the remedy if you take a look at what the actual facts as found by the trial court i think there's clearly enough evidence as to richard and lana's intent and this court can reverse on the basis of the find gs that one may when you have someone who registers to vote and you have someone who files taxes in the virgin islands buys a house at which point when they bought the house they were told it was clearly habitable when they bought it they make they make changes in there at that time remember set up three corporations and in two thousand and one the islands changed its some of the economic development program seeking to have technology companies come to the virgin islands so richard is the perfect person he set it up he then looked for office space it was hiring people and he was starting t process for purposes of the economic development program which would be down down the road years down the road so he satisfied what i consider under these circumstances a much more minimal requirement that you have for example in your and so clearly as to them as to the daughters what i would suggest is this court come up with guidance make a determination as to what transient and sojourner means come up with criteria that apply to virgin islands her number i was emphasizing all of the other cases all of the other cases deal with different objectives of congress were different statutory language this is the only case that deals with a statutory provision which says by year's end and there's a reason why congress chose that language aside from for example the puerto rico case where it says for the full year progeny which will deal with the question of an overseas an american who goes overseas and doesn't pay american taxes so if you take all of that into consideration the record here once they give up american boating rights they file the taxes here they have a presence here and they undertake business opportunities here i can conceive of no reason under the statutory under the regulations why this court should say for purposes of the virgin islands this carries out the objective that's sufficient under the circumstance that it is it's the intent it's not the actual the it's the language of the statute the language of the statute and why congress chose that language is requires intent on and look at it and said wow this place needs a lot of work and they hired a team of of contractors to come in immediately after securing the land and then pursued it ten month course of rehab with the intent of moving into the property as soon as it met their specifications is that enough even for people to physically move into the end of zero two because of all the work that needed to be done to they were under that scenario and and my answer is a bit of a hedge purposely and the reason i'm hedging is because one you have to define trenchant and sojourner under those take one step back yonder and i think the answer to your question is i think it really is a question of intent but how does a court make a determination of intent you have to look at objective facts so i think he has a really is it's a question of evidence which takes me back to what i asked earlier that this seems to be just extraordinarily fact just and call upon the finder of fact one of the facts or findings that the trial court made going along by line by line but actually every factor will finding with the exception of habitability and maybe one or two others would make things a lot easier but since you're not you seem to be suggesting that you do with the district court in the way he will need certain of those facts which creates a new we were visiting simply not articulated i n his written opinion some facts that you wish to derive from the record and which were otherwise uncontested to two points one is i'm told that inference is the drawing from the facts which is a mix question of law but second there are at least four major errors and i wish i had has if you're honest questions from the prior counsel i didn't get to the areas i wanted to go through but there are at least four major major legal er the first is how you look at the facts where he had tax avoidance as a problem and then made his determination then retroactively came up with post hoc rationales without modifying or evaluate his facts taking the motive the clear motive statutory motive congressional intended motive of setting up these companies and wanting to do so in two thousand and one and throwing that out  failing to recognize residency to be failing to recognize that residency is a multiple residency is accept says at one point i'm not looking at abandonment but if you read the decision that was an afterthought that was put in because he was looking at abandonment and then one more point we will  on the presumption the quote relied upon the landsman decision which was an not for publication decision on a pro se applicant that was four years prior to or three years prior to the doctrine of presumption this case has one unique factor to it and that is the action was instituted in the virgin islands so the district court had jurisdiction the jurisdictional predicate was the action being brought against the the the  by the taxpayers against the virgin islands and an intervention by the i r s so in that context the presumption which normally applies to the in the in clear about that and that actually uses those terms and talks about how having house having some stuff in it maybe even occasionally sleeping reading there doesn't turn into a home with burgess and says it doesn't turn into residential space here what we have is a court  right and the council citation of five seventy seven i just checked in the record council did concede that sometime you know to the parents crossed the rubicon right well if you actually look at now i don't believe there's any tax cases challenging them for now for any tax year right around is that a yes i think i'm not quite sure what to say until they just twenty billion dollars in the state for even though million dollars in the state for you know is that accurate or not that is accurate and is that not enough to make something a residence or do you need to invest more than twenty million dollars i think you have to as councils agree you have to have a subjective intent and physical presence  was the governor because the government seems to be trying to penalize people for following the law that would be tax advantages to them i mean what's wrong with that i mean we're really talking about here not some sort of more  railing but just a matter of technical timing here isn't really the nub of this case whether or not as of december thirty one two thousand and one the parents of the children satisfy the sure test isn't that what this case  all comes down to i said i don't think you need to find that they were morally bad in order to find they were not residents what the district court here found was that the ventas could have taken and that's not answering those hard lines question and however you need to establish residency so quickly by the end of this year by the end of this time for punish the taxpayer into having to take certain actions  before that time and even on exigent basis such that they maybe could not have effected in that period of time what they needed to accomplish eight thirty eight forty nine the court says well the ventus could have taken into account whether they would receive a tax benefit from becoming bona fide residents of the virgin islands consideration of their tax money differently unless i perceived explains why they would take steps to appear to be residents by its very specific date december thirty first two thousand and one that goes it's precisely what your honor just addressed and the e d p program doesn't explain the situation here mr banta did not have any profits in two thousand and one as you testified in say seven sixty five as you understood it he would not be able to get any tax incentives from the e p program to tell you was profitable so yes down the road he said he had a five to six year business plan if you look at seven sixty five sixty way that you could benefit from coming down to the person islands and only legitimate way in order to reduce your taxes is a program by the e p a and since they couldn't cut it touched benefits by that if in fact the oversight games were their advisor try to reduce their taxes and then march two thousand and one they visit the virgin islands and out hey we've decided to move to the virgin islands and then later that year just in december two thousand and one while they're doing this christmas party that the district court specifically found of virgin islands residence during the first year of the residency are they not several things on the first thing is the tax implementation green which i think is such a referencing was never argued below or cited to the district court at all secondly that there's no evidence whatsoever that mr vento or any of the bentos knew this about the tax and while there's no evidence that they knew anything at all about it you are saying we are we are we are looking at circumstantial even if even if the court chose to look at the tax information agreement we think that's a problematic thing to do the fact that there's no evidence of mr ventura knew about it means that it can't really count against the timing and stuff was sort of the circumstantial evidence here eighty five ninety two ninety three and sixty to sixty one they made the first visit to the virgin islands ever and announced that they had decided to reside in the virgin islands in august of two thousand and one they bought it was also in august and aggressively auditing and going after people who gazed in that particular tap shelter this is what the son of boss came in it's a it's a particular type of task even if you look at notice she thousand as forty four dress you know what their belief was they did fail we did ultimately manage the audit but that doesn't mean that they didn't have it doesn't mean that wasn't reasonable for the district court to find that they had the least there was a factual basis for and under this court case law and the supreme court's case anderson that's just simply finding the incentive to avoid iris audit yes recall that finally we're finding is that that's going to be in the supplemental order where he amended his it leaves  benefits in two thousand and one but you know events you know even if they were able to establish they have subjective intent in two thousand one fact matter is that they don't satisfy the second part which is a physical presence consistent with actually residing in the virgin islands as well as looking at the nature extent and reasons for them says the district court down here that basically they claim they started the richard and want to claim they started residence on august second two thousand and one that by august fifteenth they had left and didn't return until november they then left again both richard and lot of for periods between then and the end of the year and what it appears is that they were coming back virgin islands for short term purposes using round trip tickets so they would be in one of their homes or doing some other activities in the united states in their normal day to day lives come in to do some short term purpose in the virgin islands and and that is evidence that the district court found to be relevant and weighed in and that was a reasonable way by the district court to look at this evidence and to determine that ultimately that actually supported the conclusion that as of december thirty first two thousand  amount with respect to the presumption of correctness but i also thought i understood the taxpayers position to be that the district court heard in it the burden of production would shift i also think i understood also seem to recall that the government's position is that it was not applicable in my memory correctly all of this is correct and i've been have to be explicitly raised this is really the burden shifting regime that a trial judge ought to be applying this time they have to but it is the taxpayers burden to show that they've met all of the taxpayers group to initially shows some credible evidence after which the burden of production shifts to the iraqis who also have to show that they cooperated with reasonable requests which in this case they can't they thought the nail giving i don't know that i could purchase specific numbers but it is my understanding that there's more money in the daughters and in the parents at least as far as the tax schemes are involved here do you disagree with mr dershowitz that it's not particularly  meaningful it's obviously some real dollars but is it is it not particularly material for practical purposes and none tell me so i understand the question why do you think that we need to take each of these branches separately in the the daughter separately and there is money attached to each that is some amount of money that is a reason but you can't quantify any of that for us i can't quantify it specifically it is my understanding that there is more money in the daughters and there is in the parents  first is what was the intention structure of nine thirty two is is and nine thirty four was it the in intent she create a very loose standard here or a looser standard than an eight seventy one in nine eleven or instead basically par the same standard just with a different date december thirty first two thousand and one as well as to claim that that nine thirty two gives the person islands the right to make all these determinations actually the evidence if you look the secretary of the treasury was given specific authority to try to prevent abuse of the a tax incentive programs of the virgin islands that were authorized to nine thirty four and specifically on that page congress said where appropriate the secretary may treat individual as not a bona fide resident of the first islands now ultimately there's nothing in the statutory language that says that the virgin islands should have right to determine who is the resident moreover attaches to the united states determinations and what that means is that you basically have two sets of cases that were combined where each of the taxing authorities could say hey know all of the case law you only need to define for the proof and you certainly can find error where there was a weighing of the evidence under presumption of hundreds of the evidence now  turning to the next target which is about right and all of which is you know the conclusion that it was not livable that the district court made and he made this based on several different items largely dave thomas is testimony now my opponent his testimony said fifty percent livable meaning half the rooms were in fine shape and the other half the rooms well those weren't you can live in this and that first half the way i think that the district court read it and then i think this is what almost everything needed to be repaired or replaced the electricity the water supply the plumbing the concrete supports the walls the roof the kitchen appliances the cooling systems the entrance gate the dock the railings the pool street july first through december thirty first two thousand and one they want to strip the vote they pay taxes they voted and they're actually in the house through six months continuously they win but years they lose is that the way the law works yes that is the mental or works because the date is december thirty first and sometimes in the residency contacts that can be harsh results look at the dawson case went off in case it's understood that they s morning here in the store location in australia didn't happen to move there until january third generally first and second the holidays so they kind of started work until january and so your answer then it really isn't as important whether they did it to avoid taxes where they came for the snorkelling whether they liked the view it's really about the actions when they were here and what happened when they were here or when they were here have i find that but what i'm saying is you need to have both you need to have both and if this court were to find contrary to what the district court found that they had won they still lose because they don't have the other and that's what it really comes down to is you have to have and that is six pacific points one is an answer to both judge hartman a joke rock the position being taken now by the i r s is inconsistent with the new regulations that were in the jobs act which recognize that you have to take a forward looking approach that was the jobs act it's two thousand and four so how is it real it's relevant because it reflects an attitude on the question that i think you're asking and that is a record it recognizes that it's so difficult to prove in the year of a move presidency that they recommend that you look forward in order to make the determination it was looking for in this case no it wasn't but it's an added to focus second with respect to two thousand t concessional two thousand and two this is not what we're talking about of a government concession of the type that talking about this is an opening statement claiming the issues for purposes of the trial and you can't then walk away from what you frame the issues as thousand and two and two thousand and one that goes to residency in the context of this case and so you're emphasizing we're emphasize what happened in two thousand and one because of the concession two thousand and two so you make your argument predicated upon what the approaches of the to the major problem the government's approach right now is this notion that because they came to set up corporations they made one hundred eighty million dollars they want to take those funds and they understand that they get tax benefits if a set of new corporations is the bento was not retiring he was going into new ventures he understood as he testified that the e d p provides for these programs you have to be a resident residency become comes before you end up being a your plight and you get the tax benefits so he wants to be a resident he sets up the corporations he then starts the corporations he looks for things and first determine that as a tax avoidance it was not observed to the court the because of the mirror code that was an impossibility so what the court did after its findings it then months later in in response to a new trial motion came up with this post hoc rathenau but there is no evidence in the case to support that post hoc rationale why isn't the evidence simply that if the ventouse were bona fide virgin islands residents they would have filed with the b i r and not with the i does it on its own so there's no predicate for that it's an assumption based upon nothing nothing in the record no testimony in the record and it's a false assumption which i suggest should be offensive to the honour's i have just four points i'd like to make mostly in response to questions from the bench first of all judge hartmann hartmann us how much money is at stake with respect to the parents versus the daughters and their significantly more tax dollars at stake with respect to the parents the the the i r s notice of deficiency to the parents was for twenty five million dollars approximately and the notices with respect to each of the daughters was for about five million dollars and of course that's before interest and penalties and those sorts of things second judge roth us some questions about the likelihood of an audit and that's a that's an issue on which we think the district court conclusion if you want to view it as a factual conclusion that there were that that mr vento believed an audit was somehow less likely if he filed with the b i r that's a clearly erroneous factual conclusions for reasons that we've already discuss there the only evidence on that point in the record is mr vento those the nihil that they were that there were any discussions of that and the circumstantial evidence is that ms rubin cited is so circumstantial has to be that you're going to draw inferences from from circumstantial evidence there's a lot of evidence that points in the opposing direction on that point but we just don't think it's a fair inference at all so we think that factual finding was really was really clearly  the judge judge smith you and judge part of them both asked why don't we just focus on december thirty first one and and we think that's exactly the right question what was the what was the undisputed evidence well again that in this under this unique and now repealed statute the question was the residency is determined as of the last day of the year so yes i mean given the statute that you're dealing with here that's how you have to make the determination of residency is what was their intent on the last day of the year if they were present and they had an intention to make a residence in the virgin islands then then that's enough under the under the statute as it existed then and just haven't you also asked a hypothetical about you know what what happens if they're renovating a house and it's not ready until january second and i would say in response to that hypothetical as long as they have a presence in the in the virgin islands as of the similar thirty first that's that's sufficient combined with the evidence of their intention which which would based on their renovations to the home and all that finally and judgments you asked whether we're not just asking the court to reweigh the evidence and we're not at all when you look at when you look at the district cour opinion there are a total of two paragraphs of analysis of residency with respect to mr and mr mr and mrs vento it's on pages thirty six and thirty seven of the district court's opinion and there are really three key findings there are three pillars if you will of the district courts all them a conclusion of non residency one of them is the tax avoidance idea which which is just implausible and clearly iran h s the other is the habitability finding with respect to the house which we think is also clearly erroneous in the sense that it lacks any credible evidence re basis the undisputed evidence was that the house was habitable in the sense that people were living there it might not have been as habitable isn't let as it later was after twenty million dollars in innovations that people were living there this is during this entire period and  that leaves the district courts discussion of the continuing contacts with nevada and on that point we think that in that part of the court's analysis is based on a legal error because he was assuming that that mirror to contacts with with nevada were actually evidence pointing against residency when in fact the only way that evidence would have been relevant to whether they actually had established a relevant residence in the vi is if they were in the vatican for so many days that that the v i i property was clearly on it only a vacation residence but there was no there was none of that