frankly the rule of law is not a rule two scott logan is absolutely entitled to a fair trial when he finally gets his day in court on his reasonable calls sixteen to seventeen years after the fact the frame court justice alito in would three times chris the imposition of penalties at the partnership level or provision of change and went on to make the point that every partner is free to raise in his subsequent partner level or ceding any reason why the penalty should not enter a decision doc appeaser certain line we moved to modify right that language yawner and we proposed certain language changes in that language it would protect our penalty provision everything where evolve with the tax or before ten pages we dressed it in our conclusion a shifty section of our of our opening theory and so to that particular point the recurring point for us is that it is inappropriate for the tax  was determined to be a promoter what's what's your defense going to look like will have think the answer is if you are allowed to bring the partnership level at the partner level partnership hardship low we can't bring it partnership level because i'm sorry if you're tired of being the partner level the appropriate analysis for the partnership level analysis there's a reliance at the partnership level on behalf of what year it is in this circumstance the nine managing partner receives the opinion and relies upon the opinion he has of people analyze meaning that's an exclusively partner level determination the question of promoter status is a question of the independence of the firm upon whom he relied that that promoters that tracks and is only relevant to the extent that someone is a sort of a reasonable cause to finance at that particular level in this case this partnership case the partnership never asserted that it relied upon personal life never never watch the partnership itself never relied on couriers the way you want to make sure that you can say we did in good faith we rely on that at the partner level i don't see where that case or controversy is  me into tepper partnership rules if you if you take the different slices of tigers i want the court says you have mr low you have to pursue your partner load misses at the at the partner level but just never says anything about promoter there's nothing in there with one exception there's only one element want to just put in the final parts of it ministration just so you don't want anything about the promoter issue i think having a partnership level and so i think the can't you make the promoter determination quite apart from the reliance issue i'm not seeing why that has to be why it has to be named at the partner level and by me getting this list of because is only relevant to the independence of the firm upon which you rely on there's no other reason to make that determination with it with one exception and this was our our third point my third point was the tiger's right to deni the final partnership  legislative arguments about a patchwork being a national forum ended when the tax court says we're not obligated to follow a circuit authority even though this case of people to the circuit court when we think it to be incorrect the late they congress said that the tax court is so due to the same appellate rules in the same manner that saying stand as a federal district court sitting without a jury and sue the the deep concern action to determine outside basis because it's an effect that i am and not a partnership item and so therefore not appropriate we determine to a partnership level that's an issue that the government has maintained throughout this case and has conceded in so that's not at issue and so i'm going to focus my attention today lester any questions on the third issue as to whether as you say your honor the courtesan away issue as to whether it was appropriate for the tax or to determine that i had jurisdiction to determine whether curtis in a way  was a promoter i will do you agree with this who is your your friend that the think properly raised that issue in tiger's i've won in challenging the settlement when no your honor as we pointed out in our opening three or beginning with the basic point that the tax court never actually determine whether personal he was a pervert or a not and so and so there is no even if it would have been in theory in improper for it to do so it never did and so there is no subject matter there's no question as to where the courts exercised appropriate jurisdiction because it didn't exercise its its it didn't exercise jurisdiction in this regard because the parties why the court actually determine that but in addition is that the court never actually reached that it never vivek or any it would be one thing that the courts were made the determination that there courtesan way was a promoter and then you could challenge that potentially on a you know the court work subject matter jurisdiction but the thing is i think the the trust sort of took a different route well let me ask you this then if it goes back down to the pack or  down they think well we should we want to be able to argue that this is not a partnership of determination we should wait till the party stuff and what they're concerned about is when the government comes back and says hey that the first task forces are to decide that this is a what i guess my response to that is that nobody in this issue initially my response would be that nobody in this case actually asked for email and you know the bogus trust is actually asked for when meeting certain provisions of the final decision in this case are and let me in order to sort of that perhaps to shed some light on the procedure here let me direct the court's attention to what the tax court said as being the reasons for why it could determine the curse my way was promoted it gave effectively two reasons the first reason was that it is an underlying factual weak with determination as to whether the partnership was a sham in order to determine whether the partners are is a sham you have to determine whether it had economic substance whether it was a for profit enterprise and one of the one of the invision that you can look to is to the intent and the activities of the managers of the promoters there was that created and operated partnership and so the tax court said in order to be able to determine whether the partnership whether tiger's i was a sham or not i need to be able to look to those who orchestrated the whole son of boss transaction those who conceived of setting up this partnership having that partners contribute you know effectively offsetting positions and you know  equating the partnership and having them claim a inflated outside basis in order to be able to determine whether that was a sham transaction or not i am entitled to look to the managers and the promoters of the of the visors there were also an issue i think the court mentioned j trading as being one of those and so for those two reasons that it was an underlying factual and we would determine nation it was necessary to determine whether the partnership was a sham or not than the fact that that there were interests in this appeal was trying to manufacture a basis for somehow reverse in some part of the final determination but and that we strongly disagree with but in terms of it what we foresee happening going forward is that the final descent sermon ation is entered into this case the taxpayers are will be assessed the tax consequences of a partnership proceeding as well as the penalties and they will be able to be entitled to bring a refund suit as provided under under statute and regulation in which they can assert their reasonable reliance defense now at that point parties will presumably litigate the promoter issue because it wasn't in fact the tax or in this case constant plaited that the promoter issue was potentially an underlying factual legal discrimination necessary to determine whether a partnership is a sham as it turns out it didn't need to do that because the party stipulated that the partnership in fact was a share and so now going forward the taxpayers and the government will be able to litigate that issue at the parker  l just so i understand what if anything will prevent logan trust making its argument that occurs my leg was not a promoter nothing  in any stage but after what the government just said what difference does it make you're going to get a chance to say they want a promoter and he serves a werther he didn't rely on them and he's he's just said nonsensical tepper rules we will get to the parker level and the question of promoter status will come up and the government will say that's a partnership item you can not litigate partnership items at the partner level market level item and the answer is when it is asserted is a reliance on behalf of the entity the managing partner general partner x matter or on behalf of any it's a partnership item