sat on an appeal to the tax court from a ruling by a internal revenue service hearing officer in that appeal mr gilliam contended to the tax co that the request for what is called a collection due process hearing that he had made after being served with a notice of actually was timely the ruling by the hearing officer was that it was not highboy or by the service it was not timing and because it was not timely something called an equivalent hearing was granted to mr gillat had it been timely he would have gotten what was what is called the collection due process so the tax court was confronted with an issue as to its jurisdiction the government argued that because the was not timely and an equivalent hearing was held there was no right of appeal mr gilliam argued that his notice was timely and the tax court agreed with that and found that the service made a mistake in did in determining that it was not timely so the tax court then in dealing with this jurisdiction decided that because the service made a mistake the tax court was not going to deprive the taxpayer of the opportunity for an appeal and so the tax court ruled that it had jurisdiction and heard the appeal and ruled in favor of the government the government then waited a substantial period of time phi on its complaint to collect the backpacks is a mystery given the employer the statute of limitations and the district  court there were cross motion for summary judgment filed on stipulated facts and the district court ruled in favor of the government and ruled that the statue of limitations had been told and therefore the apollo's and the reason is and that really presents the critical issue in this case the question before the court of what has to be decided is based on the tact court ruling that it had jurisdiction to hear the appeal what is the legal effect of that looking backwards retroactively on what actually occurred what actually occurred was that the statute of limitations was not to  or they accepted it but it was because they actively pursued to try to get argued that their lean was superior and that is why they go there lead it was fair i'm sorry roger earl sir we lost that argument but that is what the bankruptcy court was but so it in order for the services complaint to be timely they must prevail on the argument that the legal if fact of the pats court ruling that it had jurisdiction to hear the appeal was to go back and change the equivalent hearing into action due process hearing that then told the statute what it was not to who and when the government engaged in collection activity and we don't think there is any bad legal grounds for that you did shoot move on the app on the application  you maybe i missed it but did you answer just floyd's question about why the regulation those and the and this case f case if things had proceeded as they should have proceeded if the service had recognized at the time that the notice was timely and granted a c d p hearing this think the i think the regulation and i don't believe that bears on the issues in this case but i do believe there is some conflict between the regulation in the statute to us the statutory scheme is quite clear what the statute address when they're talking about suspension of collection activity and the tolling of the statue of limitations are you saying the regulations at balad that well i don't want to go so far as to say it's invalid i just would argue that it  actually has to have been granted and pending in order for the statute to have been told that is exactly right that didn't happen here that didn't happen that is you have to use the question hit the nail on the head as someone else uses morning that is precisely the argument precisely when when that was not the case the first argument resulted from a a framing of mr giving his position that was not his position and that is the argument that they had to the application of seventy collection in violation of the suspension took place that that would then nullify the toll well first let's not rush to go halves argument because that is not what happened but secondly seventy four thirty interpreted that an exclusive report and which is what ever bar a taxpayer from seeking to require their service to do what it was supposed to do but the regular regulations or the code applies the other rationale that the district court employed which the court acknowledged she could find no authority for but felt that there was no prohibition against it was to say that  fundamental fairness a concept of fundamental fairness required that the statute actually be told and be treated as though a collection due process hearing had taken place when in fact that did not have our position on that first of all is that there there is no doctoring a quibble in circumstances like these where a and amorphous standard like fundamental fairness gives any guidance to a court as to how to deal with a particular situation where tolling of statutes or can charge there is a remedy to deal with  particularly it equitable situations and it's called equitable tolling and it has a high bar and it only applies where the the proponent of equitable tolling is without fault and that the that notice as time the polling of the statute would begat on that but it didn't rule that it was untied so there was never any pol thank you for honors and may please the court julie of that of the united states the waters here have been muddied to make them seem deep and let us be clear in this case there is no question of equitable till there is no question of retroactive application of any statute and there is fundamentally no policy that correlates the suspension of the running of a period of limitations with a stay on collection in the context of a cd feeling hearing which happened here the taxpayer submitted a request for review of a levy in december of two thousand and seven there was no levy in december of two thousand and seven that was subject to such review there was a notice that a federal tax lien had been filed on the public record and presumably it was that action of which he sought review through the collection process procedures but that wasn't what he asked for so when the i r s received that request it said oh this is  sixty three thirty levy c d p request there is no levy as to which this is timely sorry in january of two thousand and eight beyond the thirty day window during which the to the taxpayer could have requested a sixty three twenty lien c d p hearing he did request one and that came in with respect to a lien c d p notice that he had received in november of two thousand and s that when received by the i r s was deemed an untimely request but germane to the action that had immediately taken place so he was granted what the i r s deemed an equivalent hearing knowing so little and so at that point then once that hearing and a c p p hearing is in the review rights that the tax i understand that i think it's clear that there is no difference except for the appearance but the statute sixty three thirty one says that if that hearing is denied and you grant him instead an equivalency hearing the statute is not told you do not agree with that that is what the statutes of a why don't we follow the statute we do follow the statute and what the statute directs us to do here  tax court but the teller didn't make any retroactive finally he exactly said of her purpose of the appeal it would be the notice would be in time the tax court said that for purposes of its own jurisdiction right the december two thousand and the tax court made no retroactive our earnings so didn't say that it did not occur but it did not need to because had it not so found it could not have exercised its jurisdiction over the outcome of that administrative hearing and it could not have reached a decision on the merits of the liability which it later did but it doesn't change i guess the problem i have with this case is it doesn't change the fact that the tax court the tax service not attacked or she's with the service proceeded with an equivalen your honor the service was free to collect either way whether or not the the period of limitations was suspended during the i r s appeals hearing the governing provision review there was a notice of filing of a notice of federal tax on the public record that as the regulation earlier invoked by judge floyd makes clear does not stop collection levy or other collection can happen concurrently with a an i r s appeals review proceeding whether you call it a c p a hearing or an equivalent hearing with respect to the filing of a notice of federal tax lien the lien statute does not stop collection activity in the nature of a levy or in the nature of a collection in bankruptcy or elsewhere all that the i r s appeals officer is reviewing is the filing of the notice of was it procedur correct was it and there are a number of errors that they can examine for and those are not at issue here of the taxpayers is not alleging other material errors on the merits in in the i r s one could not actually because that that that's rescue caught at this point which brings us back to the tax court because when he got his decision letter and that's that's a term of art in an equivalent hearing they issue a decision letter rather than a notice of a determination because a notice of determination is jurisdictional and triggers rights to appeal to the tax court when the i when the ira's issued what it deems to be a decision letter in this case in december of two thousand and eight the taxpayer then took an appeal to the tax court had it been an equivalent that's not the outcome as a matter of fact or of law it's not our preference it's simply that the record the tax court necessarily had to find that the hearing was a c d p here that the outcome was a notice of determination in order exercise its jurisdiction that was absolutely foundational to its finding even if it was not explicitly stated even if they focused on the process ability and the administrative propriety of the treatment of the early requests the  court gave the taxpayer the entirety of the difference between a c d p hearing and an equivalent hearing which is refused by the tax and once he got there there is no basis to look back at what had happened and say this wasn't a c d p hearing all along because the only distinction between the two your honor is the right of review the regulation requires the i r s to given an equivalent hearing the let the review of the surgeon and i accept that are pushing well we would send them just seems to suggest that during the time that the service makes that determination in correctly terms it turns out the service should be down to recognizing the statue limitations as continue limitation for the entirety of the administrative proceeding from december of two thousand and seven through march of two thousand and thirteen which is a total of one thousand nine hundred thirteen days which extended the period of limitations all the way through october of two thousand and fifteen and that's really the only issue before this court on appeal whether a complaint filed in september of two thousand and fifteen was timely filed and for this reason it was for this reason it was the government does not seek any sort of equitable tolling taxpayer has not alleged what we are seeking to toll equitably all of the tolling here has to do with the suspension by statute of the running of a statutory period of limitations there is no overarching policy that any time that the period of limitations suspended by statute collection must also be suspended there are a number of provisions that do correlate the two but sixty three twenty and sixty three thirty did not they decouple and that's important here because whether or not there was whether or not collection was happening throughout bankruptcy whether or not the government was receiving any funds in applying them to the tax liabilities in dispute all of that was serving to suspend the running of the period of limitations during the c d p hering and the c d p rights of the taxpayer correlate to the suspension of the period of limitations on behalf of the government we would add also that the cases that were raised in the twenty eight jail letter filed yesterday speaks to the an availability of equitable remedies when you're within a statutory framework and from that perspective we would submit to the court that those cases actually favor the position of the government there are no equitable exceptions to this statute which says that during a pending c d p proceeding which goes from an equivalent hearing through tax court review in the court of appeals and that's where this one ended the tax court was considering was whether the office of appeals at the i r s abused its discretion in denying the taxpayer relief from the filing of a notice of federal tax lien the relief sought here in the district court involved the reduction of from which this appeal occurs the government cleared as follows the service denied mr gill you must request for a collection due process hearing as one time but nonetheless procedural rules that govern them of the rules of evidence that govern them no no difference at all the difference is the name to adopt a new and the remedy a review remedy if the review remedy and whether or not the  the collection activity is suspended in the statute of limitations toll under sixty three twenty which incorporates sixty three thirty which suspends the collection activity and sixty five zero three which tolls the ten years statute in sixty five  that that is clearly the difference the government house to house to convention use that either by necessary implication from a tax court ruling or some other yet to be defined had pointed out in his questions that had to address whether or not the notice was timely and so the tax court simply decided that because the service got it wrong he was going to accept yours diction and not way that is correct that was never appealed by the service so that issue was was not and the service then waited to over almost three years before follow the complaint and and that is why the issue that is before the court is before the court because their service cannot prevail that its filing was timely unless there is a doctrine of law that applies here in some way to allow the courts to in effect go back in time and change what actually occurred into what perhaps should have occurred but the problem is not only did the government not only did the government decide to grant and equipment here and as the statute makes clear collection activity is not suspended recognizing that the government then went forward with collections and as you asked me about judge king they did so by prevailing that their wing was entitled to priority before judge weighed in bankruptcy court and therefore they were able to get the six hundred fourteen thousand dollars clearly both the on on page three ninety nine of the appendix the service acknowledged that it collected by the bean and not by that baby and judge away hal it collected by clean and not in this proceeding this service has attempted for whatever its reasons are to read characterize its lean collection into a medical action by jumping on the regulation that seems to suggest that all connection is not suspended and that they could collect but i have no matter how you feel about that it doesn't matter to the outcome of this case because for that to become an issue you have to first agree that there is a legal basis for the retroactive application of tolly to that time period that is so critical in this case there are a couple of other points that that i should make in re it was not it was only mentioned casually in the discussion the service has contended that somehow in this case the doctrine of collateral estoppel or judicial apply it doesn't get a position has been consistent and it's always been one position and that is that the notice was timely given him and that is his position in this case absolutely not the case there's nothing ever cited to show that that was the case that is just another version of the implication from the trial from the tax court ruling that somehow because gilliam argued that the notice was not timely that the effect of the tax court ruling has gilliam arguing that what he had was a collection of due process here everything depends on how that is interpreted and how the court rules about retroactive changing what actually happened into something that didn't happen in order to give tolling to the circles i see my time is up thank you very much like you mister richard very much wrote come down