decisions that is the matching decision which this court has seen matching for ninety five and the nd for ninety five and the recent texas gulf seafood case decided about a year ago by this court and the matching decision this court stressed the importance of making sure that revenues and expenses are record in the same month otherwise the calculation is have to be wrong in texas school seafoods this court then said if a claim it claims things about it the issue becomes was it this deferral that happened in texas school seafood i mean to me deferring is the way understand texas gulf seafood oat their accounting records show it's in the air we get the spreadsheet it's in column c you know it's under this category and just saying ok that's the way they classified it that's the way we're going to treat it that's what i view deferral as to me that's not what happened here i mean for one thing the claims administrate the at st they classify it contrary to what the claimant said they removed it at the end at the very st stage they said no this isn't right we're going to move it into the other month to me that's not just blindly accepting how the company treated it because they're doing the exact opposite at the get go then the claimant comes in and says well no we  had it right we had it right and they submit documentation you know including invoices also things about the franchise agreement that show what they had to do for this soft opening or whatever it was called and then that they look at those documents is ok you persuaded us you had it right but i mean how is that just saying we're accepting how you what column you put it was sure your honor i think it's important to recognize what deference is deference it is a binary or is it a so i teach administrative law for a living and i will tell you that there's often deference but nonetheless it could still be unreasonable so here you look at the situation they turned over their data and the settlement accounts look at this is that you have all of your expenses in april all of your revenues in may this is just an error like that cannot possibly be correct and send it over there at which point then our friends said well here's our explanation and we have this today grand opening and so on and so on and so on and which point the senate program says oh we reversed course and we're going to then move it all back to april you say ok well does that make sense and as i look at what the got these documents and maybe i mean at some point yes any time you agree with someone you're in some sense as you say there's a spectrum darling to them and they they deferred to them after they produced this evidence but it's it wasn't what i see texas go see food as just deferring to how it was entered on the books i mean then copied into by the by the settlement program and then you look at the appeal panel decision which was you know comparison is relatively wholesome saying no we looked at this and this court nonetheless  if you're copping a label that is that is deference and it's apparent that the appeal panel also defer that was the language of the court it was apparent i read that it was course most recent decision as saying we're going to look at deference in a  was oh we received a bunch of free and discounted merchandise ok perhaps that is so there should be some evidence of that and we're not talking about a little bit look at compare may two thousand and nine to june two thousand i'm talking about forty thousand dollars if you're getting you know two thousand and thirty or forty thousand dollars worth of free merchandise there will be some correspondence or some envoys or something but here the settlement programs accounts they looked at this they received an explanation and they said as such no further inquiry was deemed necessary and i read that as deference at a minimum it's ambiguous and that should be enough to say to send it back we have their silicones in place we can get all this figured out the court doesn't need to get into the required and again you know it's not just what the settlement program said it's what the settlement program did i would ask the court to look at the documentation provided in the claimants reconsideration and the same can you get out of anywhere close to thirty much less sixty thousand dollars in their description of what they found there's a grand open celebration that they say you know a ten thousand dollars and lender says maybe up to twenty thousand dollars but it also includes advertising the advertising is not a cogs a cost of goods spent at all so that just put that aside and then they say well we have all these folks came in to help train our people well that also is not a codd's at all  that is a it's a mismatch so you say well what evidence in their own documents do they have that's anywhere close to explain the the discrepancies if you look at the chart and it's just it's just not there and in the last point so there's a language  settlement program there's the weather so my program did it and then of course there is the time when all this happened this court has already found in four separate cases that some folks within the settlement program were firm that's just the te seafood line of cases i was judge change those there also was the david west line of cases where folks where there we were constantly raising the argument you can't just take there at a station at its word and this court finally suspect the answer that point b will send it back to the accountants and with a skip to the bottom of this and the issue will either be resolved one way or the other police will have the sort of the process in place that we think is appropriate so that's really the basis of our argument you respond to one the other still there that should also be the end of the game the rd point would be if we want to get into a policy for seventy three dollars they say this is in addition not an amendment  submission turned in file with your claim now you are it's amending your submission your submission is broader than it was before we constantly call that an amendment not admission but in any event you would look at the purpose of policy which is exactly this we don't want people coming in after their claim has been denied adding new material to their claims is entirely consistent with the purpose and then of course finally if the court looks at the tax it exhibits six but they were supposed to be providing none of this is here i thank you thank you these expenses i think if you look at the calculation notes that are surrounded on forty six of six with these three pre opening costs you can see that the the process was very deliberative on behalf of the reviewers there were other pre opening costs that the cross appellant submitted were should have been booked in april instead of may there were there was payroll for employees who were being trained in april there was a payroll period that ended on may rd that the reviewer said well we're going to have to i went back and i put some of this  i put three days of this in may and eleven days of this in april because i want to make sure that the a bit the numbers are correct this was all very deliberative really examined by the reviewers should have been booked in may after the restaurant opened because that's typically how it works and then after it was explained to them that the these expenses were booked in april when they were purchased  used in april for three weeks of training they had to train cooks they had to train servers that they then looked at everything and agreed that this was a reasonable place for them to a book that i think it's important to remember that these were books in two thousand and nine long before the oil spill long before the a bit the requirement for a failed business economic loss claim was sorted out there's no dispute that these were going to tampa bay buccaneers case i was on with they shifted the months after they learned what the settlement right these were these were contemporaneously booked there wasn't any error in booking them when they booked them when they paid for them and what b p is essentially asking for is some sort of a as as like my opposing counsel mentioned this being at the intersection of the matching decision he's there looking for some kind of a smoothing or a matching of these these expenses in the appropriate  month but in failed visit economic loss loss claims that simply there's no there's nowhere in the settlement agreement where that is any kind of a mandate for a reviewer to to do their they're there to simply correct errors in the booking of these costs and this is when these were booked it's also important to remember that this was all going on the reconsideration in twenty thousand one hundred and seventy eight years after this all  happened the claim was filed in two thousand and thirteen it was lost in the way review for several years and the denial notice came out in march of two thousand and seventeen so this was already eight years after these expenses had even been booked and now you know the opposing counsel would like they they argue that there should be more more invoices more something to explain these these deductions these but they are there simply eight years now ten years after the fact there's not there was a long back and forth there in the reconsideration process with answers to several inquiries such financials and they gave everything that they had to explain how the costs were it was eventually accepted by the settlement program this is not a case where they just looked  label of a cost and said yeah ok that's what it says here so that's what we'll do this is in the case where they felt like they had no discretion but to keep the costs where they were based on some language in the settlement agreement this is this is a case where they were given a significant amount general ledgers everything else and came to their own decision about whether this was correct and i think the fact that there were other costs that they decided not to move back into april that the cross a felon is saying was arguing that they should have shows that they were deliberative and did not simply just defer to wherever they said caution should go now as far as the cross appeal itself admittedly it is probably it was in artfully stated to say that it was a black and white issue effect on the on the in the opening brief however i think that issue of fact is a pure result of an error of law and a misapplication of the settlement agreement  when you look at ironically it is it is also a result of the fact that they did the seven a program did not defer to their initial classification of these costs because the the problem here was when the claim was st admitted this is the financial statements only went through october two thousand and twelve even though ording to exhibit six the settlement agreement they should have gone through december two thousand and twelve now the claim was denied before that could ever even be examined because it did not get over this a bit hump because the the  settlement reviewers did not defer to the classification of these expenses cox expenses so the error was never realized by the claimant until they filed for reconsider four years after they filed their claim and and after discussions with their attorney and the claims appealed their realization that they needed to include these financial statements through two thousand and twelve and you know he says it's an amended submission we still believe it is additional financial statements i think one important thing about the two months that were added november in december  thousand and twelve is the fact that in november two thousand and twelve that is the date that this tax sale occurred that the receipt is that i'm sorry fo went through october two thousand and twelve this tax sale occurred in november two thousand and twelve this also was a business that had essentially been defunct since february two thousand and eleven a lot of this was  done trying to get their books their ducks in a row trying to file their claim they did not have their data all the way up to the date that it was filed and then four years after the fact they realized that they needed to to correctly reflect what their financial situation was at the date that they filed the claim and the simple fact is that since it came after a denial notice for a completely different reason because of the a bit a bit the issue the the accounting notes show that the balance sheets were rejected due to policy for seventy  books were not part of the contemporaneously maintain records simply because it there were no there was no evidence really until that sale occurred that those assets were no longer theirs but in any event that that failure to you to look at these additional financial statements because a pulse policy for seventy three dollars i mean violated the and the failure to recognize that i think is a mistake of law that did lead to a black and white mistake of fact but i think that it is something that according to the standard of you this court needs to soon but i will say this there were starting out four hundred thousand claims and we're down to less than fifty so by my math we are what is ten thousand nine hundred and ninety nine dollars out of ten thousand dollars on the way there so we appreciate that but that does bring it back to this point this is this claim was an error there was it seems to me at least a reasonable probability of says remanded to district court for consideration under texas exactly right that is all we're asking for here they suggest that this was contemporaneous and the facts are a little bit more complicated than that point the have said surely some of these cards had to have been made because otherwise you would have no food for your estrada i've gone back and read their brief when i was short but the point is that they had to have food right like where did this food come from we said if they didn't like the sky we said that if they didn't get it from here where did they get it from and i have not seen the response to that so there's some error here we know that there are some error which i think further supports the idea that the settlement program here deferred or at least made a reasonable probability that they deferred again point the court to look at page thirty of our brief they have never challenge that chart of numbers it just makes no sense you look  june the very next month there's less revenue and forty thousand dollars difference in cogs that cannot possibly be that doesn't make any sense at all i would urge the court again to look at the most recent texas gulf seafood it's more than just labels and not just copying labels i think the court is pretty strong to say that you're just copying verbatim explanations that also counts as deference and here i don't see any difference in copying verbatim a paraphrasing either way it strikes me as exactly the same  provide what they're supposed to provide now they say oh let us get this extra couple of months for seventy three dollars allows the settlement program to do that it's up to the discretion of the selma program if you have a good explanation and here you will look in vain in the record for any real explanation for how any of this happened when the taxing authority take things what did it take we don't know we have the story of the of a statutory lien by a landlord which a lien is not a change of ownership then we say at some point for reasons we don't know where or when or how the taxing authority takes it they sold some of it we don't know what exactly they sold the settlement program looked at this and they did not exercise her discretion to allow them to file late documents  after their claim and already been denied i don't see how that's anything but pure accounting discretion and in any event how judge harvey a was obligated to get into the weeds of that if the court has no further questions we do appreciate your time thank you so much