contexts and third if the rule fails to respect the district court's cora discretion to govern its own proceedings including governing when and how evidence should be developed as you say that responded or why don't you talk about what the before a district court is actually required to allow examination of virus officials and summons opponent house to put in enough evidence to at least raise an inference of if you have been present at all times on what it all depends on what you mean by evidence you mean direct  is whether if they would be they were actually the motivating purposes in this case the district court the court of appeals in this case only considered the statute of limitations question and it found that that  was the case here that there's no problem there's no interference with the tax court discovery rolling what but that my supposition was that assume that you cannot avoid taxpayer tax court discovery limits if that is so that to the to the district court absolutely you want us to result here i mean you know i mean you can easily imagine circumstances were there's a subpoena an administrative subpoena issued against mr smith by the time becomes around to enforcing it with very little reason to enforce it it's just myth is suffering an incurable disease and the district court would say no it's a precedent i mean i've never heard of this rule but you district court would be forbidden to look at the circumstances in which the subpoena or any other discovery document is being asked to enforce it now does this rule come from the district court can't look issued why have they asked this in force when there are only two possible reasons one is to get some information in the years two thousand and five two thousand and seven that would show that they owe more money than you claim they do  thing which would be impossible because the statute of limitations has run and the other possible reason is that you want to obtain information to put in the tax court proceeding which in fact is supported by the fact that the agents who came to enforce it were tax court lawyers and not the regular lawyers and in fact would be absolutely illegal under the law rules of the tax court so they say that's our information that's why we think this is oppressive and your response to that is if the wrong why do you want this information well we think they're sort of wrong wrong wrong wrong good thing ok well you see why is it that the government wants this information to do what because so i just want just to take a step back the cour that the inquiry is whether the summons were issued for a proper purpose this court said in couch that the legal part of the parties legal duties are fixed at the time of the summons issued so if you adopt the type of approach that they're asking for what you're going to do is give  taxpayers an incentive not to comply with a legal duty that's imposed on them by operation of law which is just to disclose information related to their tax liabilities and then to comply with summonses that are valid the issue you give them incentive to drag things out  run and they file a tax or i don't want to ask him why do you want the information you want the information because the i r s wants to make a determination of their tax liability explain that one to make it so that when you say information isn't the final partnership determination for the final partnership for the years two thousand and five two thousand and seven is that you want the information to revise that is that what you want it that is i mean yes so yes so you want some information that i want to know yes or no what are the reasons you want this information one is you want to change the number on the final partnership assessment of liability is that one of the reasons it could yes or no might show you should change the final number yes yes is there any other reason you want the information now ok thank you well could i ask you this as just justice alito that i ask you this on a related point the i r s has to as an initial step if the if the person who subpoenaed resists and for some of the i r s has to submit an affidavit saying it has a proper purpose yes right suppose that that affidavit says we have a proper purpose and our proper purpose is  this we want to scupper e for the tax court case in your view in the in your view is that a proper purpose so i guess so that the premise of your question assumes that there is already taxed her proceeding under way right and so that made it that might not be a proper purpose we have no interest whatsoever in changing our assessment however we anticipate that there's going to be a tax court proceeding we want to get discovery for the tax court proceeding is that a problem purpose and i think that would be a question that would need to be decided in a particular case the reason i'm hesitating to give you a straight answer is because i just that's just not the way the i r s works eris is trying to get the right answer and believe it or not sometimes when the i r s gets more information it will actually give money back to the taxpayer in mind that if we get information that might exonerate it's finding of improper liability or it might actually bring to light the i r s the fact of the taxpayer has overpaid in the interim now of course just to get back to the question justice alito started with earlier and finish it what you mean by evidence and i ask this because i'm trying to figure out whether we're in the only world where what you mean by evidence is sort of not about what kind of evidence it's on it's not about production of evidence to support your pleadings and so in this case what we're saying is doesn't matter how artfully you plead that there is an improper purpose you need to be able to point to some kind of evidence to support that to raise an inference of improper  i had gotten their information i would have looked at the government and said explain to me why you need this i would have done what just described and then i would have figured out and asked ok and if they didn't make sense then i would say let's go a little further and absolutely we would say you would have discretion to do that as the district court we were not looking to constrain the district or its discretion here and i think it's important to keep in mind another reason that it passed entered really what doesn't work here is that by the time we're getting to this question about what whether there's an improper purpose as an opponent has alleged the government has already made a substantial showing of good faith the government has filed the power affidavit a district court has satisfied itself that the government has established a proper purpose and then counterpart simply to say you have to point to facts from which a reasonable inference of improper motive can be tried that's what we're saying that's exactly the standard that we think should have been applied and if that and  i don't think it's very helpful to a district judge as for us to sum this back and say figure out whether there is an inference here of some unspecified strength then take the retaliation issue you have let's say that these are the fa the the i r s asks for a further extension of the statute of limitations the taxpayer says now i'm not going to agree to any further extensions and then a half an hour later the summons us or our server so you have would tell i mean because these these proceedings not everybody is going to say i'm going to appeal particularly facing the i r s and go forward do you have any basis for the argument that this is not been a problem the other circuits of in the fact that we haven't had a case yet or  let's not necessarily great one thing that when we articulate a new standard sometimes we'd like to apply it to the particular case to give clear guidance over exactly what we mean ok and in this case in particular here we're not got the summons immediately after they refused to grant it they've got a contention that this is to circumvent the tax court limits their support that by the fact that when came for the deposition the only have the tax court lawyers there are not mr freeh fielder who was a friar fielder who was running the investigation that's more than just a bare allegation well if i can separate the two allegations on the on the statute of limitations issue there were there were three or four not to the different occasions but there are sort of t and second circumvention of tax court discovery rules so as to the first i think you need to step back and ask what would it be an improper purpose for the i r s to issue a summons after a taxpayer declines to extend the statute of limitations so it's a little bit more than that it's the third request for an extension and how often does the i r s request the taxpayers to waive the statute of limitations i can give you say to six but my understanding is that the i r s does everything it can to volunteer to get that information voluntarily and in a cooperative way from in taxes or you might or you could give us more to i mean think about it longer and my sense just from looking at the cases that come in and that happens almost always you're always saying give us more time give us more time and i don't know how many times it happens three different us to come after us for that amount the obligation congress has put it on the taxpayer to determine everyone has to do their own taxes figure out how much they owe and to give documentary evidence supporting their determination of how much they owe and congress has also told  we want you to go out and inquire into the liabilities of taxpayers perspecta any tax and figure out if people are doing this correctly and we want you to do it within whatever the statute of limitations period is that's right but if that's if the i ask goes to taxpayers they don't they don't just go taxpayer and issue  summons right off the bat to go to a taxpayer in this case the partnership they made to deductions questionable interest adoptions totaling thirty four million dollars the i r s said we're not sure about this they asked for information that would allow the i r s to determine whether th do the opposite of a and it wouldn't be an abuse of discretion either way that's the nature of discretion and i view in this case if a district court sees a reason to hold a hearing and allow examination it should do that and be i ask the government may our ninth can i ask statistics it's really hard to get numbers on all of these sort of numbers based questions and i apologize for that but my sense is it doesn't happen very often but it was a time when the government thought that was the right procedure  testimony just in that case and i think we offered that as a rule to govern all cases but also it wasn't just about any obligation of improper purpose it was about a particular type of purpose that was a that was relevant and which is that an allegation that the i r s had a criminal investigation only purpose and when congress and acted tougher in one thousand nine hundred two it took that allegation of improper purpose off the table by sort of drawing making irrelevant whether the i r s whatever its internal motivation was whether it was looking at criminal or civil liability it took that off the table and so all the courts of appeals from the seventy's and eighty's that allowed examination of virus officials as a matter of course or more frequently all of those courts of appeals except the eleventh circuit changed their rule after tougher as an actor because all of those hol really just about whether the i r s had a solely criminal investigative investigation purpose can i go back and you said it's rare does that mean it's really it never happened i think it happens sometimes it doesn't happen very often and again i think that's because before you even get to the question the i r s has already made a significant showing through the powell affidavit it has established that it has a proper purpose i mean iris doesn't just say they were proper purpose they have to identify the purpose and if you look on pages twenty four and twenty five of the joint appendix you will see the purpose that's alleged in this case which is looking into these questionable interest adduction there is more of what i don't have clear in my mind is how to write the facts into this i mean before we had our previous call i guess they had no idea why you wanted this information more specifically than you're saying and then you say quite truthfully told we took three seconds and you said no we want it because we might want to revise the the  the examination has been concluded and the service should no longer be in the process of gathering data to support a determination and then they have all power got full of similar things from the i r s that so they'll  you but the lawyer and they'll say well what was special about this that you decided to have this extra examination and they'll have been answer to that whereas as a sort of lay person in this area reading that that sounds like a good set of questions to ask you be interested what the answer is and they should be able to ask them now am i missing something when i say in what i call is some kind of big problem for something  were to say in an opinion look this is the kind of thing that they want to know and it sounds as if since we don't know your side of it but it sounds as if this is the situation with they should be able to find out what the problem is that the i r s seek the information one o issues the summons and that happened before the f p a was issued to happen before there is tax purposes eatings and so if you write an opinion that says well if you you know if the if the summons is don't get in force until after the f b i is issued and at that point the taxpayers figure out the difference tween the two sides here and i guess you can only answer for affidavit but i suspect the difference is you are saying that there is enough evidence here to allow a district court to exercise discretion but not enough to reverse a district court if it did not exercise its discretion in favor of allowing the hearing yes that right exactly and i suspect the other side will be saying there is not only enough inferred from those facts so you would reverse the district court here if the district court you're not defending what the court of appeal said that you're entitled to hear in every case whatever you you say improper motive yes you have you don't defend that if we read the case that way i don't defend it i read it to say that you look at pleading standards and putting it paul you look at all of the other cases that re whole it doesn't say those words it says we made a complete and detailed review of the entire record we are applying pleading standards in the course of this and we are relying on nero and its predecessors all of which say for instance you can't get this hearing by just saying deny or just saying i think they were acting with an improper focus and so therefore if you put all these things together in an unpublished opinion that's the citing my case we think that's what the result was of what they were do eat but i'm you know like what the eleventh circuit is doing is a little confusing to me and i understand what motivated well be live witnesses that would be up to the discretion of the court based on what the allegations were made in that particular case but the tip that is not a problem i think the eleventh circuit means a life hearing because of its jurisprudence in this area which has barred any other kind of evidence to be sought from the i r s and has a case that says you can't have depositions you can't have discovery  discovery in its traditional sense documents or other things but i don't know has it also said you can't have affidavits no it doesn't say you can't have affidavits and we have provided affidavit in the iris right not the the the the eleventh circuit has not said you can't present evidence by means of affidavits in order to try and support your position what it has saying is i'm talking about the government because i started by asking you are you looking to cross examine i r s agents we believe that what the eleventh circuit says we have the right to do and what we want to do is to get at least a very fair felder in so that we can cross examine for sweat i back to her affidavit which we have serious doubts about now the as ms harrington indicates the taxpayer does have a duty to provide information to the i r s but even in this particular case what doesn't appear in the record is that the i r s lived at dynamo for two years before these requests for it and large amount of time they weren't doing anything for a long period of time as we  indicated in our submissions are allegations are affidavits they didn't do anything for a long period of time then they suddenly asked for a new extension of the statute of limitations then we denied it they promptly filed b s summonses  to the fact that the documents had already been reviewed or that the statute of limitations has passed that that wasn't enough so what if you've given us that's greater than all right we're not saying it's because the statute of limitations has passed we're saying it's because the f d a has been issued and the a according to the statute you're only permitted one to be a you can't go back and modify or amend the f d a once you've done that as judge justice prior indicates the the matter is completed in terms of the if there are others she didn't say any of those right but they'll be an argument that whether they can or cannot amend from right that we believe the law makes it clear that they can't and then the f d a and that once the f d a is issued the possibility of amendment of what's in there moves to a court either moose of the federal court of claims or it moves to a district court bankruptcy court or the tax court and when someone is asked to pay as much money as was asked for in this case the tax  logical place to go because it's the only one you can go to without first paying all the money and try to challenge could you have  referenced actually held we don't have jurisdiction to determine whether the should be in force or shouldn't be enforced if they go ahead in allow them to be enforced in the information is gathered we will in consider the information oh discovery in that case should be we have already said that when that once that case started was the first time they tried to enforce these summons the summonses were issued back in october and september of two thousand and ten they weren't obeyed back in two thousand and ten the i r s manual says and i know it's not the force of law but it does say what the i r s says which is if they don't perform the summonses you must come in and seek in for summons within three days and then it moves up the channel and then you must pursue that as quickly as you can and they didn't do that nothing happened in terms of trying to enforce the summonses at any time until the f d a was issue know addition and that we know that the f d a that was issued on december twenty eighth of two thousand and ten was actually signed by this agent on august eleventh of two thousand and ten and was issued without any change and so what we're looking at here is an agent who has finished the f d a in august suddenly issue summonses in september in october when they're not performed doesn't try to get them in force because if she had wanted that information for the purpose of completing her f d a which she had already completed and might be considering revising she didn't do that and she had the opportunity to do that and she was employed by the i r s manual to do those things and she didn't do those things then the  goes out we file a tax court case they answer a month later it's the first time that we get any indication from them that they want to try and enforce the summonses and what they're looking for is documentation that they could easily get through a request for production of documents in the tax court their only problem in the tax court was getting those documents would be it would be subject to a scope objection with respect to discovery whereas under a summons there is no objection to scold if they can ask for anything that they want that has anything to do with the finances of the particular taxpayer and that's why we make the analogy to rule two thousand and four of the bankruptcy court rules where trustees in creditors and other parties and interests can ask for information about the finances of the debtor without any limitations on what they can ask taxpayer to limit that scope the scope of discovered millions of documents i just had to sign it i mean is that what i hear there are cases in which district courts have in fact limited the scope of summons in the typical enforcement of a summons if they serve you with a summons you're not entitled even to have a lawyer at the examination you have to give them everything if you don't give them everything or make an excuse why there isn't that something doesn't exist then you're into enforcement proceedings and then you have to go into that litigation we are in a bit again in that litigation in the district court once you are before the district court you can make an objection as to  excessive scope yes we didn't make an objection as a scope because they made such a broad yuppy a they were making such broad allegations at the time these sums initially came out and they were making such broad allegations in the tax court that that would not be successful and we don't think that the district court should be deciding what the correct scope is we that's something that the tax court should be deciding based on what the issues are in the tax court the was designed especially know about all of these issues that come up relating to tax returns and examination of tax returns and some of that at the point w cause i don't think you can you're on the right i don't believe that if if these summonses had been if enforcement proceedings had been begun in two thousand and ten before the f d a had been issued before any tax court proceeding had gone that we could at that time in good faith have signed a paper under ruhleben saying they're only going to use this for use in the tax court they're not going to use it for the f d a we haven't we haven't seen the aug eleventh f p a that was signed by ms for your folder until after it was issued in december of two thousand and ten what is it that you want to ask or as i said i suspect at this hearing you want to call her absolutely what you want to ask or i want to without giving up  why did you delay in issuing the summonses until the very end of this case of the statue of limitations period when you had had people in the store for two years looking at everything that was available why do you delay why did you sign the f p a which is your final partnership administrative adjustment on august eleventh of two thousand and ten if you hadn't completed your examination already  when did you send this final partnership administrative adjustment up to be issued because the way i understand this works it has to go up through the ranks you can't just issue the f d a herself it has to be issued out of washington d c and of course the last one would be budget related to and what role would the enforcement of the summonses have in helping your examination which is one of the two purposes that might possibly apply to this case in view of the fact that there's a tax court case pending an f d a has already been filed what could you possibly use this for in the course of your examination of these tax returns for two think there's much more to the government's position than are a throw up with reference to her arrest i think you can ask that in any tax case i've ever heard of well until the f b a has already been issued i'm sure you can't ask it  and in most of these cases the summonses are being inforced long before the statute of limitations comes if you look even at the tax advocate report that is included in the reply brief of the reference in the reply brief of the government in this case you see that there were one hundred seventeen cases that were have reported decisions over the last years and it lists who was represented and who wasn't and almost no one was represented who simply was twelve people have lawyers and almost be a couple of them resulted in i r s the i r s losing they said we lost that they lost in this case we were not but the reason we want to stick confirm the judgment affirm the charge went below is that in your view it would be an abuse of discretion for the district court not to have the  hearing a preliminary hearing correct limited would be an abuse of discretion not to do it on the facts of this case we believe it would be an abuse of discretion not to do it on the facts of this case because on the pleading standards established in bone pointedly we get it now allegations is representation of a material fact that's correct syl of men to final partnership administrative adjustment notice i apologize it's true but since yeah but that's a really big issue because i think and an i r s agent who says i want to make sure there's none of those things and that's why i'm issuing the subpoena has a legitimate basis so if i don't think it's an abuse of discretion or that you showed me much with respect to that issue what's left for you what what what other fact would you could you possibly have stated well because we already said and how that the expiration of the statute of limitations doesn't make a difference correct they can always have illegitimate statement of wanting to make sure that none of those three things happened so what else in your  anything about fraud or malfeasance none of which have been even hinted about or suggested in this case as far as we're aware now that would be something that there's this is always this dual purpose problem that we have with the enforcement the summonses if a summons has a proper purpose in an improper purpose i'm not sure we can possibly win in that situation when we go to this preliminary hearing we're trying to develop what evidence we can from the it's an i r s regulations that says they do purpose that i'm talking about is for instance to use this evidence solely in the tax court after the tax court cases been filed after the f d a has been issued just marry for your field or did not say that she was going to use this to try and investigate a fraud or a milkman mill malfeasance or anything else like that she only said she wanted it this is morning edition say why she wanted she said she had tax court case starts you can enforce it no matter what there's you know in your in your experience how often does the i r s ask a taxpayer to wait statute of limitations too much i suspect that's your judgment but in your experience how often how often do they do it i'd have to confer with my facts counsel but in almost every significant case they will ask for at least one extension of the statute of limitations they  right now going back to powell which and what normally happens if you say no usually they go forward and issue their final partnership administrative adjustment or their statutory notice of deficiency within the time that's permitted or if they don't think they've got a problem they let it go that almost never happens that what the statutory notice of deficiency or the f d a will come out you usually don't get when you're nearing the end of the statue of limitations a raft of summonses like this except apparently in this case and in this particular district where it happens quite a bit  we think that the rule set forth relating to grand jury subpoenas not being able to be used to bolster a criminal case after an indictment has already been issued is universally accepted we think that the rule two thousand four rule relating to bankruptcy some subpoenas which says that the bankruptcy subpoena can no longer be enforced once litigation is underway between the discovering party and the non discovering party about the subject of the someone we believe it that is ordinarily true we can always make an argument to try and prevent particular evidence from coming in but in the tax court but we can't absolutely know that we're going to be able to stop in the tax court it's going to be up to them to decide whether to accept the information the real issue in this case isn't the documents it's the examination the examination that the i r s wants to take is an examination that basically has no strictures it has no  absolute right for counsel to be in attendance it has no right for cross examination it has no limits on what the scope of the examination can be it can be what it is referenced in a lot of cases about i r s summons is a fishing expedition and that's what the i r s wants to do here and we're positive about that because of the way they have been pursuing this including the deposition tak candide he was permitted to attend we weren't invited to attend the the matter was it was ultimately came out that they didn't get much from ms move i'm sure that's why she agreed to go ahead and give that deposition but we couldn't insist on being there we couldn't have insisted on cross examining her in what the i r s attorney who's handling the tax court case were positive wants to do from all of the things that have happened in that case is to get the examinations of the individuals who were summoned without us being able to control it without us being able to examine at those at those examinations where the government  potential abuse of process relating to criminal prosecutions and it was to resolve a problem that was created by the decision that you couldn't go based on the intention of a single agent having intention of pursuing criminal prosecution you had to look at the institutional intention of the i r s and that meant you had to take the testimony of everybody in the i r s to establish what the institutional intention was tefl because now it has to be there's a referral or there's not a referral in otherwise that issue doesn't come off but it doesn't deal with the situation in which powell says we're entitled to show at a meaningful adversary hearing anything else showing abuse of the court process and that means abuse of the district court's process into bust the use of the district courts process in enforcing an i r s s that's supposed to be used only for examinations one of which has already been completed solely for the purpose of baiting the rules of the of the tax court that control discovery is an abuse of process and we believe that that's about and there will be an unreasonable circular burden because we have to have evidence to get evidence and we can't get the evidence without already having the evidence in our case with respect to the evasion of the tax court rules we believe that we already presented enough evidence but the trial court judge didn't even look at that evidence and said that you absolutely that's as a matter of law that can't possibly be a defense to the summonses  congress intended the courts to be a check on abusive use of administrative summons as we believe that these that we have shown by allegations and by our evidence that these were abusive attempts to use these administrative summonses we believe that the judgment of the eleventh circuit should be firm and be if necessary to clarify what appears that a rule clarifying it as i've indicated with requiring pleadings that would pass muster under it ball  if i misspoke i apologize what i intended to say or what i wanted to say was that i'm going issue for the i r s is this isn't it may demand it's final determination of liability for the taxpayer once that you're in the tax court that happens in the tax court not by a i didn't mean to suggest otherwise it's but so thinking about the tax court tax court once you have the proceedings going the right that the tax court itself has said that if you have a summons that was issued before the f d a it can be helpful to have that summons enforced because the information that would be acquired through enforcing that summons would be relevant to the ultimate i mean did you change the only reason there that she in her up to date just says she wants the information to help decide the tax liability she doesn't say anything specific so you're saying the reason we want to do it is we want to change the tax liability possibly that's a matter in the tax court and therefore you want to do it for the tax court so now there's a question can you use  case in the tax court well that is the reason for enforcing the summons that was not the reason for issuing the summon i realized if that is the only reason poor enforcing the summons i don't know is there or is there any more need for a hearing i mean it's a legal question and the tax court has said that issuing a summons in that circumstance doesn't offend anything that's happening in the tax court as justice ginsburg said permission to help their case or change the liability in the tax court so they have enough information to make its own determination about that and so what it decided was the taxpayer had met its burden and issued the f p a and the i r s is entitled to take that protective step if if the taxpayer is refusing to turn over information and just one last point on it paul we really don't think it qualifies here because in this in this instance what you're talking about is you are already having showing by the i r s that it has a proper purpose and the district court is not going to issue an order to show cause unless the district court is the duty is on the summons opponent to disprove a proper purpose and so the opponent isn't entitled to a presumption that what they say it's correct who could use a little bit more miss harrington about what it what kind of evidence would overcome the presumption in a particular case what so this court identified in power to potential improper purposes one would be harassment and one is an attempt to kind of leverage settlement and collateral matter and i think to take the second one if the i r s were really trying to pressure a ta into settling a collateral matter the i r s would have some evidence of that otherwise it would be a pretty ineffective attempt to leverage a settlement it's a they're going to have some communications from the i r s or something like that and the taxpayer can submit affidavits or any kind of documentary evidence that's in recipients possession to the district court and then the district has discretion if it wants to hear more from the i r s to ask for that more information in whatever way it deems appropriate thank you thank you counsel case is submitted