and that's the mechanism your honor to created an assessment it isn't the conduct of a good sauce she has no ability to do that it has to be a statutory knows of the fish and see that action is or rather intertwined with an assessment you can escape the action of a proposed relative agent at the initial to getting on to hide it and also your honor there's also as we cited in our thousand and six a statute that was enacted only one year before the year the tax year issue here congress repealed the ability to get a reasonable basis defense for a gross valuation penalty  deficiency and additional penalties stated in the notice of decision why if you if you if your interpretation of the notices deficiency as being the limit of what the i r s can claim as a penalty is true doesn't it write this provision out of the out of any meaning why why would we need why would the tax court need jurisdiction to consider reading terminations of the deficiency is actually in stone you wouldn't need that jurisdiction because you can never change that your argument is once they shoot the notice of deficiency that's it they can't change this civil penalty cannot  be added later in the judicial proceedings that's our position and i point what do you rely on for that is there anything in the tax code is there anything in the case well yes if you go back to iran or through the legislative history why this program not asking about legislative history we always start with the plain language we don't we as a general rule we don't we don't really care one particular legislator that right here your honor that in trying to the second  your logic that would make the initial determination greg the tax court makes the reader terminations and her judgment subsequently on the deficiency that's right but that all of that happened so part down it's not the initial determination of the it's a subsequent point in time years later fear after the audit is after all the funds that there has happened offer all the possible settlements not settlements but just from post just tell me whether or not all the until you're done with the appeal and the dispute about what the amount of the taxes that suggests that it's not fixed until we're through the tax court that time and the determination that was ever made that was the initial determination that was made and that but at the task force received this change this bait and switch at a new we have position of a new type of accounting going forward because they the taxpayer for whatever reason chose to appeal which is their fundamental right that they can't be faulted for that but next thing they know they're not challenging a reasonable bas determination twenty percent which is which is what they undertook to butter but are fighting a strict liability penalty over which the tax showing of reasonable but that's that is the significant difference in terms of descending against the penalties when they're making the decision whether they should appeal i think they can always stand the defense to the twenty percent push my question is are you saying that had the taxpayer chosen the u s district court route that he would have been assured of a maximum penalty of twenty percent not you know that i can legitimately challenge the twenty percent penalty as for whatever reason not the eye of the taxpayer may have i may be inclined to appeal but if i open up the door to a risk of a forty percent penalty that is no way that is non discretionary as far as appeals concerned are you i'm not going to go down that door so this right of appeal is becoming very initial terminations of the assessment that's the initial determination that the triggers all of the review possibilities are sixty to fourteen but the determination was what is reflected in the deficiency which your initial determination let's say in this appeal the three of us go into conference and we have a heated discussion about which way the case should turn out  you judge with you another in our yet a third but ultimately we come to a decision and we issue it as far as the two of you it concerned in the public in general what took place in terms of our internal background is also it seems to me irrelevant and what really matters is to the taxpayer is that notice that the taxpayer receives in the mail that says you have a deficiency of act in a penalty why why background conversations that took place t very hard to square and michelle with any time during the tax court proceedings including the in the third amended answer may have to have is that initial because it's the in the third or even then it's not the first time in five if i do it in the third amended answer and i make representing the commissioner and in my third amended answer i say you know what we're going for the forty percent penalty usually announced in the deficiency and they said look we've changed our mind we're taking that forty they said yeah you've got this woman at twenty but you know what you've got this other issue over here for a different portion of your return and we're going after you forty on that so there i guess you could say it's different and it's an initial but in this case how is it an initial if i've already said on this particular wrongdoing in your tax return on hold needs to a twenty percent penalty now in my third amended answer i'm going for forty tell me how i tell me how to interpret the word and michelle to cover that sat and given the notice of deficiency and then after they appeal to the tax court you say oh wait a minute that same penalty that we said twenty now we want forty and if there's one on the merits of the evaluation there would have does that there your honor ninety five percent of the cases go to the tax court it's a pre payment jurisdiction it's set up to handle it you've got experts national experts on the tax law  it's the court of choice by the vast majority of tax appeals to go to this prepaid and you can argue about it before you pay and that's the way the system is set up and compromises also are