please the court in the morning i'm richard craig are present stuff and told in the at all and in an action to recover reasonable attorneys fees  usually two elements one is the hours spent the others the right and both those are are in play today what happened is that fortunately they made some concessions and now constrict the hours which i'd like to start with the hours and later the rates  constricted them greatly so that all we're looking at today is a five and one third month period we call it the briefing period the brazing  before in the primary case b which was a so called passing last case which as i said we were successful on thousands of telephone calls between he and louisiana operating his business the court called them called it micro management was quite disparaging  let's just go to the i'm sorry or that seems to go the part of this case that we're not here to address as you point out this is the i turns on the no harm no i think your argument would be more helpful to us if you will focus on the attorneys fees themselves and why the district courts reduction was an abuse of discretion yes they have a broad tax credit is broad discretion we don't deny that but briefing period process of preparing bruce pretty far fetched but the bizarre part of it is that the court found in many other trials that in in carries over he's doing the same thing he's got this thing for telephone calls and they're not all reasonable the facts are these that in the five and a third months of this briefing period this two hundred eighty hours what was going on there were fifty seven telephone calls between myself and the appellant fifty seven it's an average per month not two hundred per month i can't see i'm going to lead to kali's counsel to tell you how that makes any sense there are a lot of other reasons why this analogy from actually from seven or eight years ago is practices and managing them business compared to theirs practices and helping me write a brief i mean that's a far fetched  estimated for you i don't think so you wrong there is no record of that time if i understand your argument what you're putting to us is why your client should pay you for what services you provide it but i don't see that that answers the reasons or answers the justification the court would have to say to expect the other party to pay at that same amount was and reasonable and to reduce what the other parties  snatching defeat from the jaws of victory so we were i was being very professional and i answered thirty six pages i almost laughed when i read that because the right measure but whether for four weeks full time is something the other side should pay for i suppose as well as that before we get to the rights which is a completely different issue our court allowed and i'll tell you what i'm on the one hundred eighty dollars an hour or so again it cut the allowance and half of what happens geometrically there is if you take away of the fact that that certainly could be a special factor and my background i'm devoted my whole life to the horse business all my clients virtually there in the horse business i'm an owner and breeder of horses and i'm in my non lethal capacity i'm the first to admit that not being attacks are here has nothing to do was factors courts have attorney fees was two hundred seventy six point one hours for trial and post trial briefing at the statutory maximum rate of one hundred eighty dollars an hour that is a maximum it was misstated earlier that the statute starts at a base rate of one hundred eighty dollars an hour it in fact sets that as a cap which can only be transcended on a showing a very compelling special factors and here we have at best dicked at that suggests that in certain circumstances some of the factors that were not even found to be present or material on this record might break through that cap and authorize an attorney to receive fees in excess of the statutory cap we don't have that here we don't have a finding here that any course expertise was necessary for the taxpayer to prevail at trial to do so he had to show that he had spent five hundred or more hours on a business activity for which he sought to clean the doctrines that would make those deductions active and not passive he made that showing through telephone records and the telephone records were so voluminous that the tax court looked at them and said it's plain from this that you exceed this five hundred hour threshold it's so plain that you have exceeded the threshold that from the point at which the commissioner is satisfied that this information is reliable we don't even find that position substantially justified going forward any more so you get to be a prevailing party you get to recover your feet that does not imply that you should with a clear cut case based on documentary evidence wrack up hours and hours and hours and hours of fees conferring attorney and client together drafting and redrafting and redrafting briefs on standards that wound up not being applied and basically stipulated evidentiary record with two days of trial testimony this was not a complicated editing job even for someone who values concise and well written briefs the answer was apparent to the tax court and the tax court held should have been apparent to the commissioner as early as november of two thousand and nine the government does not contest the award of the fees as they stand two hundred seventy six point one hours is what we will concede reasonable and the one hundred eighty dollars an hour rate is what the statute prescribes we see no abuse of discretion in limiting the appellant's recovery to that   reasonable what they said what the issue here is is there an abuse of discretion in the course funny that a reasonable fee is has had to prove right you know so so clearly you're free to bill your client for your time there's no indication that that's not an appropriate fee there's no indication that four hundred dollars isn't it entirely appropriate in the field the question is is that did the judge abused his discretion in that in the end the really that's the question we want you to address i understand your honor i think that either there was an abuse of discretion or a terrible error made and using the only reason for cutting those hours was of what was he was a telephone addict that's not true and i was charging him for hundred hours an hour for those telephone calls and you counsel for your appearance in the arguments you provided to the court and for the briefing that's been submitted we will take