determinative of the outcome of the case thus as an imperative that the standard of review and burdens of proof this court uses are correct here we're concerned that if these standards of review smith and affidavit submitted summary judgment standards apply also noted how note eighteen says that the rules of civil procedure apply specifically it means that the moving party was prove their right to sorry judgment beyond a reasonable doubt where as where the party bears the burden of proof that means each  must be proven beyond a reasonable doubt in this particular case what we have is that there were titian's of caution filed with motions for enforcement under pal the government is the one that bears the burden of proof and it has to prove all the power standards so while we are out summary judgment right now it is not some slight burden is beyond a reasonable doubt as to all elements might they might wish to speak that well balanced financial managements talk about slight birds and heavy burd but st balance financial management was not a summary judgment case secondly we really don't have a slight burdens and heavy burdens as burdens of proof  typically preponderance clear and convincing and beyond a reasonable doubt what i believe that balanced financial management was speaking to wince when talking about slight burdens and heavy burdens is the practical matter of the difficulty of proof for example a non so must proceed a person goes in and tries to enforce a promis to this well we're not even sure completely what they did but they did not treat it as summary judge now does it matter how does it matter how does it matter st off is how are the burdens of proof proof treat it remember s under summary judgment it's proof beyond a reasonable doubt of all the elements all inferences are in favor of them don moving party what it looks like happened in this case and what we believe happened in standing again both to one when they're analyzing it is that the conflated the standards misused balance financial management and gave the inferences in favor of the government and they gave government a slight burden another where i took it is that they are saying all the government has to do is show  think i would like for you if you would to compare this affidavit in this case to the affidavit in standing to kimbo which which runs pretty much for all intents and purposes identical as far as i can see and any kimbo the panel held that that that applying the summary judgment standard that that very same affidavit was sufficient to meet the powell fact yes and in particular the factor that you challenge here how does this case dipper first as i go through i'm going to go through the affidavit of david shula one that's two page fifty eight so so we're on the same page and looking at it from this standpoint beyond a reasonable doubt all inferences against the moving part if you look at per graph thirteen to date green solution entities have not provided enough information to substantiate the figures on shown on their tax returns that's conclusory there is nothing no facts underneath  the power factors and the summary judgment standard so can you distinguish it for me and in light of again the again it is lawyer i mean you have to apply akimbo we don't we don't have a choice about well you are my reading of spent campbell as far as the whether the documents exist i don't think that judge phillips actually rule well i don't know as well and it's the court just  that the burden to prove the nonexistence of the documents is on the taxpayer the court said that the taxpayer is challenging whether the documents exist the next sentences but the tax but the tax payers have to prove their affirmative defenses they never made the length of the court never made the link that ate the existence of the documents is an affirmative defense and i should note at this court is going to construe spending that campbell is saying there is a holding that the existence of the dock is affirmative the if because we are certain that they are knocked and i think if we were allowed to go to a hearing and if we were able to subpoena a state of colorado official that they would confirm that annual in inventory report a copy of annual inventory report showing annual totals of product purchase grown process sold and waste destroyed from it from the metric database for periods listed above this does not solve all inferences in favor of the nonmoving party this does not sound like a preexisting report well  one i guess on that same point is it an issue disputed issue material fact if one party asked for a report and the other party says we don't have such a report that i don't think i understood just asking for a report doesn't mean that such a thing exists so isn't a simple answer i'm sorry we don't have such a report ok the united states be rude united c seventy six thousand and thirty eight it says that you that the government has to identify the dock with reasonable certainty right so it's not only court it's statutory and with that i'd like to reserve the rest of my time for rebuttal but let me ask your question for a moment for certainly for your reserve and that goes just along the lines of what we're talking about so to get a document you have to describe it with reasonable certainty i have no problem with that proposition but i mean how there's no way for the government to know if the state has these reports without asking for it i mean are they supposed to do some type of informal investigation to make sure they exist before they send a summons well if we look at us be greenlit they go through those issues there the it starts turning into a fishing expedition if you start if you say well i want to get all the information that you may have on the us taxpayer there's no particular date at that point this is what this starts getting into the th amendment case that they you have to describe what you are some it's the fact that they don't know that it exists is that a legitimate purpose purpose to ask for something that nobody knows exist and again it has to be described with reasonable certainty a bank statement there is reasonable certainty that a bank statement yet exists if they know that the person is banking at that at that price and that's one of the things that the agents always  put in their affidavits they bank there they're going to have bank statements we want the bank statements there's reasonable certainty what we have here is we don't know what these reports are and we it's just a light and and dealt with them and rejected them that standing of him though is for that reason dispositive on all the merits issues except for the one jurisdictional issue which we believe is a straightforward issue the the the summary judgment point is one that i would like to address briefly and that the key thing i think to understand is that this court has now repeatedly in down financial in mn in high number one that the proceedings are to be summary in nature and then in the only thing it issue is whether the summons is issued in good faith number two that the burden on the government to establish the power how factors  like number three specifically that the government needs that burden as a general matter through an affidavit of the irish agent who issued summon number four that the taxpayers have a heavy burden and that actually otherwise it is in the normal case the district court should dispose of the proceedings on the papers before it and finally number six discoveries available only in extraordinary situations and would require a substantial primary showing by the taxpayer that's what this court said in those three cases a lot of that is repeating what the supreme court said in u s vs heart us versus stewart and it also is  kark overrule the balance financial case absolutely not in fact in clark the court noted without any hint of century i mean that the we can see that with the the hook that now that taxpayers want to rely on is well summary judgment standard applied and so that means something different about you know how these six principles play out and that can't be right and i don't think we can just glide over that and say gosh just as we have cases that say it doesn't that we've reversed cases where the court is used the wrong approach that's certainly true as a general matter with the only thing i would say is if you look at the other cases in other circuits for example where the same six guiding principles are set out about how you deal with these some summonsed proceedings i think you will commonly see that the court often times it doesn't even address the question of whether it should be motion to dismiss or whether it should be motion for summary judgment because in this context frankly the summary judgment  whether that the court converts the motion to dismiss and to be clear the government will not file motions to dismiss within the circuit going forward we get the message from saying you can vote but the question and let's go through the pile factors and see if there are math let's look at at the allegations that are you know made by the taxpayer and see if they actually amount to a factual dispute of these factors or  if the taxpayer has you know factually made affirmative advances helpful i understand what you're saying and i recall the same discussion from the campbell case about the nomenclature versus you know what what we actually do  in reviewing the pal factors do you and i understand what you're saying i sense that you disagree some aspects of of the kimbo but but do you think that we actually applied not statutory but the substantive framework that you were just discussing in the very steps do you think that we applied that correctly  clear i don't think that we disagree with standing akimbo i think our only i think we would just i just offer that i wouldn't want towards the lower courts to be confused going forward and i will say just for the court's information  you know we've obviously at the justice department discussed sort of how how to deal with these notions which are fairly routine in in the lower courts and what we are  that the court actually said it long as a is actually if the government is making a motion to and in force which to be clear is a statutory right that the government has in the context of these kinds of petitions to quash well no i mean our our practice of insult those until standing akimbo i don't think it was clear in the circuit respectfully that that it was improper to to use a motion to dismiss high desert dealt with a case where the government and f pleading i understand here on or i think i think what the way we thought about it prior to standing akimbo is this is this is kind of like a case where like i said a documented issues like that that the you know the a petitioner comes forward in a complaint and rep and refers to a deed the defendant can then you know talking about the deed or you know dismiss for in this circumstance to summary judgment motions and that's and going forward the we're we're making efforts to try to account for that holding and we certainly won't file our motions as motion  exactly the it's the kind of review of the district court's determination and marches through here exactly the same arguments and i would just note parent that i mean i think back in in the summer of  how made in phatic lee clear the taxpayer has a right to hearing what this proceeding is doing summary judgment by its nature discusses whether the right to hearing is taken away because there are no facts in dispute and the moving party is entitle to judgment as a matter of law our right to hearing as a due process  right so this is what we're talking about are we taking away the due process rights to hearing because there is no facts in dispute and the moving parties entitle to judgment as a matter of law so down so you say that no backs are in dispute what i mean what's the it should say that there has been no objections on hearsay grounds to anything that's been submitted there is a whole host of evidence that needs to be considered to decide whether or not there are no facts and without the ability to cross examine and without any other questions looks like when time is ended thank you very much thank you counsel thank you both for your arguments this morning the case in submitted