procedurally when the actions occurred that we take is a violation of the rules of taxpayers case starts with the i r s in a collection matter before a person called a revenue officer who assigned to collect and during the course of the taxpayer may ready take an administrative appeal up into the i r s appeals function for the iris appeals function to render a decision on the correct of collection the tax payers typically seeking a deal could be an installment agreement to write down of the taxes whatever that in that appeal to the i r s appeals function the ex parte rules apply to the appeals functions through the revenue procedure that the parties subside and the idea is that the iris appeals officer who is making the determination should not be having communications with others within the i r s concerning the case that might taint that appeals officers determination  and it goes on the administrative appeal there is an internal iraqi documents that he creates and transmits administratively and this is called the case history and  document that the taxpayers do not receive do not have access to and part of what the revenue procedure tries to do is to ensure with respect to ex parte that the revenue officer doesn't use this case history just sort of stuff it with communications to the appeals officer that are going to get transmitted up ex parte without the taxpayers being aware sounds like t statements that are pertinent to the originating functions consideration the case that seems to apply here even if the substance of those comments would be prohibited otherwise i think one of the government's arguments is has some contradictory provisions the revenue procedure also says and the revenue officer shall not include gratuitous remarks and i think if you believe if you read the various provisions i think if the government points on that clause you just read were were taken literally then there would be no ex parte anything potentially d at the end there i think if the court looks to the language of the revenue procedure as a whole the whole idea is to assess and ex parte rule and i know the government would say it's not the same as would apply with the courts and that's correct but to establish an ex parte rule where things are not supposed to come in  administrative or ministerial and certainly things are not supposed to come in that as in this case disparage the other side and try to create a picture of the other side in this case as uncooperative in the in the main case that we cite the drake case the revenue officer said well what the attorney is doing is making a mockery mockery of the court you would agree that you would agree to the letter and then those are not that bad bill in this case trending was basically uncooperative i think was the word and there was some reference to he was asked to leave your office and yes and for the record  drake case the facts here are not as bad as can be in other cases but that doesn't mean it still didn't cross the line and your honor when i find extraordinary here is that as in the drake case where the re officer put a full memorandum into the case to really hear and obviously facilitated these days by the the change in technology the revenue officer actually  counsel to be criticizing the uploads the whole letter into the case history didn't just sit there and you know there was a meeting they did not provide the documentation something like that you really put the color in there and i think at you on the day that he came and yes absolutely your honor and i think it is kind of interesting because i think the color issue is kind of what we're talking about i mean we're we're talking about again maybe this is not as bad as  the officer who otherwise has no contact with this case doesn't know who the taxpayer council are and that appeals officer is reading about this horrible crime yes it is the color if the if the revenue officer had just sat and neutrally entered and went to the office of mister johnson and interacted asked for documentation he asserted that legally he was not obligated to provide it something along those lines would have been just fine actual attorney as opposed to discussing sort of a what a reasonable attorney would interpret but i think if your honor looks at that comment it's in the record the appeals officer said something along the lines of hey what happened with you in the revenue officer and that was the the limit of the cab i would say your honor that that didn't put the attorney reasonably on notice that all of this stuff was in was in  true so again we take the position that the case history in this circumstance the revenue officer crossed this line he put these things into the case history and i submit i think we can plainly read it that there was likely and intent here the revenue officer didn't feel like you've been treated correctly he felt like some sort of right said some rules have been violated by the attorney any and put that in there with the intent that it would one way or another way to the appeals officer it's hard to imagine why a government worker would take all that trouble to actually stand up actual letters and put them into the case histories again your more or less came out and said well the revenue lost or didn't specifically direct your results the tax for its language goes a little back and forth on the disparagement issue and i don't think the tax for really took specifically directed a result if the revenue officer disparages one party in that case history that's enough even if there's not a direct result and of course your honour's are fully aware that it would be problematic before court if a police i represent the commission are the tax supported here correctly rejected tax payers argument that revenue officer wagner's notes that were reported in the administrative file constituted improper  notes in the administrative file that taxpayers power of attorney mister johnson was not going to cooperate was not considered to be an improper ex party communication under section two says discussions of the originating functions abuse concerning the level of cooperation or lack thereof is prohibited and i'm looking at the notes uploaded and so it's prohibited to talk about lack of cooperation file takes precedence over that and he isn't that essentially a lull all these impermissible communications to be included in the administrator file if they're done quickly not necessarily and again the red proc provides that that whether or not the revenue officer had the intent to affect the outcome of the appeal by the settlement office or i would  that typically want to revenue officer visits a tax payer or their power of attorney it's going to be relative relative whether or not the power of attorney or tax payer was co operative again here it's really in taxpayers best interest that they do cooperate with the revenue officer in an attempt to actually get a resolution of that maybe it may be the red lobster makes record but i think the regulation may suggest that's fine but it cannot be uploaded to the administrative record in order to preserve the impartiality you peals process but again i would suggest that  uploading the letter r as part of the case history is part of the revenue officers function to document what happened in the case and that way by having the letter there are which he contemporaneously uploaded  july th just evidence exactly what the history was in this case and again i would suggest that it was in taxpayers and councils best interests to cooperate with the revenue  letter and some notes aren't discussions i don't think there are discussions again i think if you actually look at the documentation in the administrative record it appears as mister johnson said the revenue officer was documented to me no i showed up at the office nobody was here or then mister johnson acknowledged his presence they went into the excess of three hundred thousand dollars so there's no question about that and taxpayers just were looking for a collection alternative and in order to evaluate whether a collection alternative would be appropriate the the revenue officer of the settlement office are needed to understand what taxpayers finances were their employment status and their assets and in this case there's no dispute that taxpayers are not challenging the conclusions of the settlement officer here or that they were entitled to any one of their collection alternatives the whole the whole case resolves around whether or not the notes were admitted really contemporaneous in the administrators file whether or not that was prohibitive ex parte and again the new procedure has multiple exceptions to that rule and there is nothing here that taxpayers have the stablished that the revenue officer intended to influence the settlements officers determination as to whether or not to permit taxpayers to have a collection alternative here again why it got to the appeals office which was several months i believe it was in november after that initial contact on july th at that time when it got to the selman officer and judge cobra's pointed out the settlement officer was very forthright that was nothing hidden asked whether or not you know and why taxpayers couldn't resolve the matter with the revenue officer the settlement officer was just trying to understand the procedural history as to how it got up to his office in for his determination and the settlement officer on multiple occasions made it clear to mister johnson that he needed to provide the requested financial information the collection information statement bank records and other information so that the revenue officer could make a determination whether or not taxpayers should get a collection alternative to the lane in the proposed levy and there is no dispute here from taxpayers that that the termination that they weren't entitled to a collection alternative is improper here there is nothing in the record that indicates that the independence of the settlement officer was in any way a conference during the hearing in fact the settlement officer had several conversations with mister johnson barring whether or not taxpayers would qualify for a lien withdrawal or an installment agreement and instead in fact they you know on the objective facts of the taxpayer's financial information that they did not  generally haven't seen any of these type of issues on the d c circuit i believe in two thousand and fourteen and there's not much in the record in this buyer's case and there are the d c circuit health that there was no improper ex parte communication and again even in the tax or there's just a small handful of cases where where this has come up you know trait more and industrial investors which are cited in the parties brief and all of those cases but the comments as even mister johnson has acknowledged this morning go more to the substance of issues involved the positions of the taxpayer and in those cases the result was that the tax court remanded back to the office of appeals in order to have a new settlement officer and a new hearing just again to make sure that the independence of that office is not in any way compromised and as we point out margrave we believe those cases on their fact distinguishable and again in those three cases the settlement officers office of appeals had a had denied a collection alternative in the taxpayers and those cases were contesting whether or not office of appeals determination in denying those collection alternatives was an abuse of discretion here again that that issue is not involved there is nothing that shows that the office of appeals decision to sustain collection was compromised and again we take the position that the tax court didn't abuse its discretion in sustaining that terminations and allowing the collection to go officer is supposed to act independently of the revenue up there that's why the whole scheme is set up and if you have a situation where it's so to speak between the revenue officer of the taxpayers representative plays itself out in the case notes then one  reason to question whether or not the settlement upsurges actually acted independently and so why should we be concerned about that here in particular well here in particular i probably would suggest that just the comment uncooperative probably comes up more often than not in these cases either the tax payers cooperate or again they don't i wouldn't really describe it as as a  beef again there is no dispute that taxpayers and their attorney had the responsibility as a practitioner before the internal revenue service to provide requested financial revenue officer additionally provided taxpayers attorney with a cough up the circular to thirty eight page nineteen which again explains that mister johnson had a duty to documents were not like i mean they were ultimately provided that correct eventually yes and again with respect to that meeting it's it's typical i arrest procedure in these cases to have unscheduled unannounced sorts of visits yes and here again once the case did get to settlement officers her work and i believe that was some time november  th at that time i believe settlement the settlement office or the record shows that he requested that mister johnson and taxpayers provide certain information and i do not believe at that st request that tax payers and their representatives were cooperating and i believe it was after a subsequent discussion requesting those documents that they were eventually provided so the settlement officer or on his own  after that st meeting could have independently come to the conclusion the taxpayers were being co operative here or here if there is no indication that they were forthright from the beginning in providing that documentation to establish that the i r s is administrative collection of that tack that of those taxes were not proper so again we take the position that court didn't abuse discretion in sustaining the leaning and opposed levy and we respectfully request that this court affirm the decision of the tax court thank you thank you asked your closing counsel out that's two point three three deep which says that discussions of the originating functions views concerning the level of cooperation are impermissible i can lend my question to you is  these two letters that this subsection uses the word discussions subsection d s subsection f uses the word communications and i'm wondering are these two letters if this applies are these two letters communications or are they discussions discuss the same swims like a back and forth consideration of an analysis of the level of cooperation and your honor i think i could take your point and  make something in favor of my client but actually i'm not quite sure maybe that action was so intended by the the revenue procedure perhaps the revenue procedure was just written before a time when it was possible to load up a document  i appreciate that that distinction may work and in our favor i think the loading up of a document perhaps is not per se a problem but then it gets to the extent and color in this situation  administrative leave by the i r s and frankly i'm not sure that that sort of you know sure horning each little piece of the contrary revenue procedure language in our position gets us to the answer what gets us to the answer is just a gut feeling that has a line been crossed where potentially we'll never know the intent of the revenue officer but as a line been crossed objective lee where it's possible that this of deal's off  y your honor if i may just briefly i do want to hear two things number one as ms bradley says taxpayers are labeled cooperative or uncooperative i've worked in this area for a long  time that's a very thought that's a very black and white distinction for i r s people if you are an uncooperative taxpayer you're bad person you're in this category if you're co operative you're over in that category that is very much a and just briefly the only other item i would add is with respect to that we did not contest the result the appeals officers result is subject to an abuse of discretion standard when the tax court is reviewing and making its decision and so under in a few sort of discretion standard that this is not rematch it back to an appeals officer for new decision frankly we're going to lose in front of the u s tax burden that standard that's all right thank you thank you to both of you for your very helpful or arguments that case will be submitted and the court will issue an opinion