would be one half of the equity in the house in other words whatever the community property interest to mr magruder debatably whatever his interest in the house would be that she would receive her community property interest that being said united states versus rogers provides awaiting test for equitable factors to weigh for this court and on every single one of the factors which will lead you through mrs mcgrew should win on the equity now the rogers court basically said that this is not a bright line test it's a commonsense approach and some of the courts that have quoted rogers have indicated that it would be agree as an extremely inequitable of for the non liable party to owe the taxes for the libel party don't forget in this case mr mcgrew bezel the community property funds he took the community property funds and went off to arkansas with his real in the district court indicated that the i r s would be harmed if they were not able to collect the taxes in this case but i would maintain that not only is mrs mcgrew more harmed but the equities favor mrs mcgrew because the i r s never made any showing that they went after mr mcgrew who is the tax payer that owe them the taxes mr mcgrew had the funds to be able to pay the taxes all the cash was taken with him to arkansas he could have easily paid the taxes and this was his tax liability not herb's he took the funds if the i r s make a showing at all that they tried to collect from him they were unsuccessful and that's why they're going after the house no they made no showing in fact when we inquired about that they said we can't reveal anything with regard to what we've tried to collect from mr mcgrew because that would violate his privacy so we have no knowledge of any actions that they've taken in this case with regard to collecting from m second factor which is brought up in the in the rogers case is what we're mrs mcgrew is legal expectations now that the i r s in their brief says her perception of her expectations do not govern it's the legal expectations but your honor she's a lay person and when a judge a family law court judge says that she doesn't have the liability for a husband that the tax liability is his liability and requires that he sign in or spousal transfer deed i would think that rises to the level of legal expectancy that from her perspective here's a family law court judge who's saying that she doesn't have any liability for these taxes and that her legal expectancy at that point rises to the level of she has title to the house there was a de transferred required by the court so on that factor too i think her legal expectation see was very tax liens and quite frankly in the family law judge i think his knowledge of the tax law and that what you're trying to rely on what he said so i'm trying to relate back to her legal expect in he said and he said that there were tax free again and that those tax liabilities were solely the responsibility ever ex husband so her legal expectancy was that her ex husband was liable for it not her i'm on the third rogers factor which has to do with whether or not there'd be harm to the non liable taxpayer in this case and in the group even judge real acknowledge that on this factor the factor favor lee would be kicked out of her house the only house that her son has known growing up in removed from the school district and then having to replace the house and try to purchase a house that would be far less in value because she would get so much less of the equity out of it but also she's been paying the property tax on the mortgage on this house from time immemorial when this divorce happened so for thirteen or fourteen years she's been paying the mortgage and paying the property tax i think all the equities on this factor in the rogers case absolutely favor mr magruder how old is the son now and he's seventeen so he's i'm sorry he's thirteen just or that was younger that's what our requests are ok so and what grade do you know appraise in now eighth grade so he'll be done presumably he passes his grades in four and a half years or so he'll be done with high school all right let's hope so ok could be a different kind of case i guess but i guess the question is is that it has there been any mediation or discussion to try to set up something where look the i r s they want their money and the i r s ultimately usually gets their money but is there a way there's been a discussions to structure this so that event would not occur for four and a half years until the time when the son is graduate from high school there have quite frankly been some discussions with the justice department regarding some kind of deferral but there's nothing on the table where i could make a representation to this court that that is going to happen or that there is some kind of agreement so there have been you know loose discussions about do you think that our ninth circuit mediation program would be helpful in this case if you guys tried that i think the justice department indicated that that would not i mean i'm always open for mediation and was willing in the beginning to go there the mediation department contacted us and basically said the justice department  willing to do so i can't put words in their mouth but i know that we were willing at that time and would you still be  factor i think is one that sometimes the courts get confused it's a waiting between the interests of the non liable spouse and the liable spouse and in this particular case that factor really is almost irrelevant because then the libel spouse has absolutely no interest in the property he's not going to be harmed if mrs mcgrew house gets taken away from her he has zero stake in this action so with regard to that particular factor the equity is all in favor of mrs mcgrew with regard to the liens your honor actually i think what i'd like to do is reserve what remaining time i have and listen to the justice department  seventy seven to seventy eight her attorney in the divorce proceedings indicated there is a federal tax lien on the property in the amount of two hundred forty seven thousand dollars as of october two thousand and six the judge as you argument there so the review of the district court here is for abuse of discretion as you well know so this is not a case where they're alleging that the district court here applied the wrong legal rule everyone is applying the rogers spent a lot of time on roger specter's number one which is prejudice the united states a partial sale unfortunately for him although he made this argument his reply brief in his pleadings in the district court quote from document thirty three page seventeen which is his across a motion for summary judgment this factor does not seem applicable in this case because as a practical matter the sailor non sale of eileen mcgrew house is an all or nothing event the government doesn't have to make a showing that we tried to collect from other sources we have an interest in the proper collection of taxes we have because it's you know on the record in the western district of arkansas can give you the case number if you like but these this is his property interests and tax liens must be acted on just like any other tax it's with us within ten years of assessment this is the real property to he's already waifs that i'm secondly the legally recognized expectation and trust she was represented by counsel in the divorce proceedings in the divorce but her niece stated there is a mortgage on this house in fact hundred fifty thousand dollars there is a tax lien two hundred forty seven thousand dollars the lawyer acknowledged it tax lien law is clear there is nothing like death and taxes you cannot it is black letter again they were on cross motions for summary judgment she did not present in response the government's position that this was not properly recognized him expectation interest for example witnesses or other information only the statement here because they never asked for a hearing the third issue is has the potential prejudiced the third party and as a judge all said in every case where the government forecloses on ta again she made a few statements on an affidavit about her son being in school and that she couldn't afford comparable housing but again this was on a cross motion for summary judgment and was and she was not interested and saying judge i would like to make a showing how this is going to prejudice me in some way that's greater than any other person for example some of the cases that were in the reply brief that they cited i'm dying of cancer i'm on social security i have no way to live anywhere else then there's trailer on swamp land in florida right so there is that was not part of their case and finally the comparative property interests the entire property was subject lns subject to liens because the community  for two thousand and even if you try to do this i think that he's arguing for a percentage calculation of the amount that will go to each party which would go to judge reinhart's initial question of how much  five hundred thousand dollars the mortgage as of the last number i have is from twenty fourteen was about one hundred seventeen thousand dollars so that would leave three hundred eighty three thousand dollars and i'm just going through it for also order so it's divided in half would be one ninety one five so currently the community at the two thousand tax year is about sixty four five as of last week i had them right for me because you know i'm a lawyer not an accountant  that would be thirty two to five for my liens half so subtracting that from the one nine hundred one five gets one fifty nine approximately and that would be doing the math that some of the courts employ to say what percent is going to go to each party is it something that's really inequitable like a thirty six thousand dollar tax lien on a seven hundred thousand dollars house a house for sale here it would be forty one percent to aileen and forty nine percent a tribute to the former spouse  possibilities that was rejected and because of that that was why we did not pursue mediation and this court let me ask you they all asked the question i asked your do you think mediation could potentially help you say as you and me just said which make sense you guys just care about the money right not not that you want the money so i don't know if i don't know if mediation would be helpful in the sense that she wants a compromise of our liabilities because she thinks this is you know the greatest and justice ever visited but you know we could go to mediation but we could also if she if the solution for her to pay us is reversed more is a mortgage or something else then that would be you know up to her and i have received zero settlement communication entire time i've been on this case from counsel so i do not know what his position would be but there are even the cases they rely on what happens isn't usually if the district court again this is the district court's role and its discretion will say no i wade rogers and under rogers now this isn't fair but there's still a thirty two thousand dollars tax lien on it on this house and it's worth seven hundred thousand dollars you've got to pay it get a mortgage figure out how do you know or if you don't want to sell the house or have another case had payments over time you know to the government  so that she can keep the house but again these tax liens are on this property there they're not going away and council you know still not acknowledging so until i think  that we can get to a position i don't know if mediations appropriate or if it's some other type of negotiation because you know as in not settling the case because we have a valid judgement so i can't compromise on my own that has to be authorized by someone  know i understand that but i'm just the question was in terms of being open to mediation your position is that you are open to mediation yes i think you just one thing i would like to mention to you and you might tell your  office when the case is scheduled on a holiday for a lawyer representing the government or any other party for a continuance it will be granted i mean the government did not suffer i don't have much time your honor but i have a little and i just want to as a last point opposing counsel indicated that you know they have their liens but the liens are a little more complicated than that there's different types of liens a lien that's between the taxpayer that owes the money and the government is created immediately upon filing a tax return and that's called an in coate lean some tax commentators call it call it an invisible leaner magic but really it's just a relationship between the government and the taxpayer a recorded lien a coate lien is filed with the county recorder's office and puts everybody on notice that there is a lien filed the liens in this case were recorded after the parties legally were divorced not before i mean not after the property dissolution but the legal dissolution occurred on september fourteenth two thousand and six and the recorded liens were filed some of them on october fourth two thousand and six interestingly enough the taxpayer mr mcgrew then went and filed tax returns and the taxes that were related to those particular liens were abated and new attack new taxes were assessed based on the actual filing of the returns new orleans recorded and those means were recorded on october twenty second two thousand and seven again after the parties were legally divorced because the legal the dissolution was granted september fourteenth of two thousand and six now we can say that the court was aware of the tax liens at some point during a divorce the exact date that the liens were made aware to the court and the parties i do not know but i do know that before the parties went into the divorce mrs mcgrew had no idea that her husband did not pay taxes or that there was a tax liability and no notice was provided to her from the i r s ironically that situation has now changed in the law the i r s now always gives notice to both spouse and not at that time so she had no way of even knowing going into the divorce or informing her divorce lawyer that maybe the negotiations with regard to the property distribution should have been different with regard to the tax lien she was at a severe