the intro reasonable and it's quite clear that revenue procedures and revenue rulings may be repealed or revoked at the at the discretion of the commission the internal revenue service not an issue here is that there was never it was always in effect with so far as the applicable times  revoked however at the time that congress enacted the two thousand and four act the revenue procedure was in place when congress enacted the two thousand and four act it's basically did not include any discussion of claims for refund under section sixty five or rather section sixty five eleventh commission once and only once it's mentioned in the revenue procedure congress was well aware of the internal revenue service has position on the issue at the time that the two thousand and four act was enact and it specifically took no action the reason for that your honour's is the fact that there was no need to take any action section sixty five eleven carries its own three year statute of limitations at the time of the enactment of the revenue procedure the adoption of the revenue procedure there were no tax payers that had any tax years or were in danger of expiration under section sixty five eleven because of the timing of the adoption of the revenue procedure the congress adopted some  concerns expressed by the internal revenue service with respect to those taxpayers who wish to either wave an election previously made which is not to want gallagher supply or what make an election that was not previously available under the prior wall return so i'm not really sure why they're inconsistent your honor there is no requirement of the law that we make any election won't belling ever intended to make an election under the walk prior to or after the adoption of any of the legislation or the changed yeah and and for those taxpayers in the situation that your client was in i just i just don't understand why it isn't reasonable for government to want to know what you plan to do that's really how i see this whole if you don't go back and claim that once it is still conserved it is no longer available for carry or when are you filed a formal eleven thirty nine with the two thousand and one return electing the quick we fund which you start these rights free two thousand and two statute is that filing irrelevant to anything in this case it's not irrelevant your honor but it's not an election it's a it's an back under the statute and the taxpayer merely the refund on the table it's up to the taxpayer but there is no elect you thanks to the filing of the application or the claim the only election is to waive the automatic statutory treatment for the carry back and in that case instead of you don't you don't waive part of the carry back and only carry back one year whatever you waive the entire carry and then by default under the under the once every four dash for regulations in the one seventy two i'm sure once  x four and one seventy two eight it goes forward and it goes forward twenty years still the only election is to say i don't have any use for that i'd rather carry it forward not the taxpayers is required to comply in the same passion after the statute was the revenue procedure of course is published in the internal revenue ports and it was published approximately six months prior to the expiration of its deadline and the taxpayer at the time of the revenue procedure was published was filed within the three year statute of limitations provided by sixty five eleven well we'll hear from the governor in just a moment but i assume what they're going to tell us that you know the fact that two thousand and two act as a limitation on sixty five eleven or a modification with respect to sixty five eleven to the extent that it applies to this very very narrow matter and delegates to the service the manner in which this two thousand and two change will be carried out the service may tell the court that your honor but that would not be an accurate statement of was section sixty five a woman is not mentioned in the two thousand and two act the only thing five eleven which we don't think really plays a role in this case under section one seventy two b three and under section one seventy two j there are all actions to be made to determine the number strict time limits they are not the usual sixty five eleven of three years after the return for the last year they are when the return itself was due which and to all in its case was twelve fifteen two thousand and one first the internal revenue service and then ratification by congress extended that but only until october thirty first two thousand and two the congressional legislation refers to it as before november first two thousand and two but that's the same as up to october thirty first two thousand and two so by that date the i r s was entitle to know claimed for two thousand and two we'd like to file a refund claim carrying back a larger amount not switching the year to which we were carrying it back because we submit that that's already settled by one seventy two  want to increase it because we now think we have a larger loss in two thousand and two there's a two thousand and one rather they could do that any time up until three years after the few date of return  for the last year which is two thousand and one so they could do that any time up until two thousand is not affected by one seventy two that's well there there are two different things one seventy two is built into the statute and that he has express and more limited date by which a taxpayer much make must make an election when it was i correct or incorrect and trying to reconcile this kind of situation in other words would it still have had the opportunity to then go ahead and file the amended return after that within the three years yes as long as they had notified the government by october thirty first that if it didn't actually  after the filing requirement the three years to file her refund it was just a way of saying ok let the government know and then you still have your three years that's right now there's a little confusion that was caused by the fact that the method govern the i r s used was either a new to indicate whether you prefer the five or the two was either a refund claim or a new application for ten fact it would have been expected that someone into all of this situation would have preferred the so called quickie refund procedure you get your money a lot quicker connection with two thousand and one they originally  do is not file a refund claim but file another amended application for tempted to carry back because they get the money so you would agree with mr sellers to the extent that the filing of the eleven thirty nine is not particularly service kind of had an administrative problem in view of the elated legislation and then they all reasonably decided to extend the period until oct thirty first these periods would have  period when the refund claim ordinarily would be due these are special more restricted time limits that were when the return itself is due not three years from the return but the return they're already it's fire and but nevertheless think the tax payers got this extension and so october thirty first but for the same reason that congress has this restricted period in the first place it makes a mess when the service doesn't know whether a taxpayer is claiming no carry back is claiming a two year carry back this claiming a five year carry back it keeps all those years open it messes up future years because it affects if there's scary back losses left over they they are carried forward up to twenty years so that's why congress is very restricted in terms of the service needs to know and there's this earlier limitation   may even lek to have a carry back period computed without regard to be one age as at five versus two that's right that means without regard means they may elect to have the two year instead of the five year in a in such manner as may be prescribed by the secretary are you arguing in effect that to the extent at least that the taxpayer argues that sixty five eleven is the fundamental statute on timing that this might be an implied modification of six well we think in general there have been a lot of it one seventy two b three has been in the code for a very long time which is the whether you're entitled to it if you want to  carry back period entirely that election has always been there i've never seen any argument that sixty five eleven the general three year period takes priority over the very specific period in one seventy the timing here is built in to one seventy two for example on the to the extent he argues that sixty five eleven is the controlling timing mechanism then then what's one said well we have several arguments i'd say one is the more specific takes priority over the more general one seventy two is dealing with these very special election provisions sixty five eleven deals with everything in the internal revenue priority over every provision in the internal revenue code for example banks were allowed a ten year carry back under the seller's theory any taxpayer who within three years of the last year claims something ten years back and says look sixty five eleven gives me priority so what difference does it make that the substantive statute says that this is limited to banks i see the language saying  notwithstanding any other provision so i'm entitled to a ten year carry back or to bring it even more specifically to the facts of the course of this case once the need to be three which has been in the code for a long time allows  says it's my decision to waive any right to any carry backers of revocable i'm going to use sixty five eleven d to be to override that provision of one seventy two b three it doesn't work that way that exceeds the purpose of respect to rev proc two thousand and two dash forty what is your principle argument that it was expressly contemplated or at least permitted by one seventy two j a revenue procedures an official pronouncement it and yes we are requiring we are relying on the specific delegation and as in this case which talks about in the manner prescribed think undershoot we would argue for chevron deference but i think the court will either think that what the service did was was eminently reasonable or we'll think it was totally out to lunch so i don't think the dividing lines will do it i one other thing in this case which is somewhat unusual if congress two years later adopted legislation along these lines and  the conference committee report does have a footnote citing in particular that this revenue procedure further counsel i just wonder if i have one minute i just wanted  the thirteen of the reply brief it's picked up again on page fourteen in the reply brief if you look at that particular revenue procedure which is actually getting pretty old anyway but i bet revenue procedure dr rulings with too large are which are dealt with two pages later on page by fifty four and they stay with the returned in terms of retroactive repeal of that revenue rulings published in the sellars you have some reserve time you i want to be clear we are not the taxpayer here is not saying that we balance the deadlines of sixty five eleven versus the deadlines in one seventy two sixty five eleven is  antithetical to the one seventy two elections second the section one seventy two elections have a separate statutory deadline and what the taxpayer is saying by filing that election is in trouble in the service i do not want to file under sixty five eleven  my right to file under sixty five eleven unless and until the taxpayer either waived the five year carry back in these years or the two year carry back the carry back is automatic it is conferred mandatorily and automatically upon the taxpayer the taxpayer then has the right to choose and there are some procedural distinctions between the application for tentative refund or the claim for a refund procedure if the taxpayer files the a lot of the election under either  of the waiver provisions there waving sixty five eleven they are not going to file the claim for refund they're notifying internal revenue service we're not going back in time we're only going to go forward in time so there's no need for balancing of that time periods or whether sixty five eleven preempt those we look at those as being mutually exclusive and i think that that's the way the statutes really read and the way that the statutes can be clearly apply now the government is the one that changed the carrier that creates from two years to five years the government claims that revenue procedure two thousand to forty is reasonable because of administrative concerns involving confusion and a right to know what the taxpayer plans and intends to do what the taxpayer plans and it tends to do is for them magically and less and he washing his pile to the contrary to carry it back five years under the under the revision to the statute in two thousand to act the government only knows what the taxpayer is going to do the government knows the statute provides that that that if i think had thing i had to have to change there are already the last tax return they have to file a new tax return yes your honor that is that is mandatory and that is what they did not only did they have to file a new tax return to to correct the prior filing because they're on a fiscal year here and the fiscal year didn't jive with the date of adoption of the two thousand to act they were required since the lack of vides that for all tax years ending in two thousand and one and two so they did what they were required to do they filed and a claim for we found in the form of a minute return for two thousand and six to adopt the treatment of the current law then they amended the nine hundred ninety nine to your carry back return that they had already planned and the reason for that is because to not do so might have affected it doubled up they were required to do so and they did so they filed no contrary election and no one has a statute say for purposes of administrative convenience or the internal revenue service right to know what is coming down the road nowhere does it say that that the taxpayer's right to file a claim for a refund under the claim for refund statute is is somehow abrogated or that kind current shortened the only place shall be changed to five for all of these tax years for all these tax payers i'm there was when we when we talk about the extension of the of the time period that the government granted  taxpayers that wanted to file applications for tentative refunds under section sixty four a lot of yes indeed for some taxpayers the time for filing an application for tentative refund had already expired so the government did in the revenue procedure extend the filing deadline for those taxpayers for the same reasons that we cite in our briefs we don't think that was effective as a matter of law sixty four eleven already carries its own statutory provision you're not going tending that because of your this school year that somehow or other you were deprived of notice or never given an opportunity to comply with the revenue procedure or you know your honor we're not now the sixty four lennon taxpayers w granted an extension what the government cannot explain is what the government says as before and after the adoption of the statute the taxpayer had the sixty five eleven mechanism available to them as a matter of wrong however after the next one of the revenue procedure and they also say that the true meaning manner includes the combination of determining the timing of the making decision that was not made the timing of the election is specifically stated in the statute it's by the due date including the return including extension for the filing of the tax return congress clearly knew the difference between the manner and the timing with respect to argument under the any other rule of law under sixty five if you have indeed to be the government claims it ha s to do with residue to kata that's not expressed in the statute they cite one case in which that was an example suggested by a court however if we look down in the same statute under d to be sub par three we find specific reference prior terminations of any court with regard to the amount of attacks including the united states tax court and it says that even though that the that the tax laws for the for the carry back your may have already been that we are allowed to how the three year statute under a and b and and that those are not in conflict with the elections and the deadlines for the elections that we never made  special provision of well we do say that sixty five eleven and one seventy two the elections are apples and oranges the trial court determining in this case that the delegation of authority to determine the manner of making an election also included its timing there is absolutely no way that we can see under the statute that that the timing is not specifically stated in the statute and beyond the delegation of authority to the internal revenue service and for that reason we respect our request that you  one zero three which is the tempest in a contract case as opposed to the point