pollock representing the united states in the spiel the government's principal contention in this case is that the regulation here at issue is valid therefore the refund claim is untimely and jurisdiction is lacking the regulation defines the use of certified or registered mail or a designated private delivery service as the exclusive means of proving that a tax document was delivered sorry i'm going to interrupt you i know that part of it i have something i'd like to give a comment please i'm not entirely convinced that we need to look to the regulation and perform a chevron analysis the statute here doesn't seem ambiguous however i know when anderson this court said the language of the statute does not bar admission of extrinsic evidence to prove timely delivery so my question to you is does andersen require us to say the statute is ambiguous or is there another way to that what i take to be the holding of andersen is the statute itself does not reflect a clear intent by congress to displace the common law mailbox rule and that then andersen went on to rely as this court often d in situations where the statute itself is not clear on a canon of of statutory construction in this case the canon of statutory construction that where there is nothing else that that or the where there's nothing in the statute that directly speaks to the issue that the common law is assumed to remain in effect now and then speak to the issues that spoke about mailings so speak to the issue in the sense that the statute itself does not directly say the common law or mailbox rule continues in force not nor does it directly say the common law or mailbox rule is abrogated and the circuit split by that circuit split right so it's at least quite unlikely that a dozen court of appeals judges would come almost you know almost down the middle on you know on one side of the other on the question of the existence of a gap in the stance you that can be reasonably can be filled by a reasonable regulation and i have a question about the interpretation of the regulation itself and the statute the regulation potentially carries its own and bring unity because it seems to talk about the date of delivery which assumes that there is a delivery and for example if something arrives three days late but you can show that it was mailed in time and then clearly the regulation pervert's that another way to reduce the way you are reading at which is that it provides the x if it was intended to cure this second split and provide that the mailbox rule was gone and i just do we have to reach in addition to show how deference potentially our deference also which is shaky ground potentially your honor i don't believe so and i would respectfully disagree with the premise of your of your question that th one there's one court and i and it's featured prominently in the in the opposing in the apple these brief the philadelphia marine decision out of the third circuit i think clearly mis mis interpreted the statute and and read it to mean that it's right to only provide a rule where a document is ends up being delivered but deliberately i think there's just no way to read the statute that way the statu so payments and tax returns were not did not sort of qualify for this statutory mailbox rule as an initial matter and then congress came back and said ok we're going to we're going to it's working well we're going to include payments in the in the mailbox  include tax returns in the in the mailbox we're also going to include payments but we're not going to include payments in the delivery room or in other words where the money has to have the money to even a registered mail recei emphasize also the point that each of the each of the courts this court and her stand and other courts that the eighth circuit in in in would end and even the i'm the one opinion in the te circuit case they've all relied on this question of the that this common law gap filling statute can of statutory construction to reach the conclusion that the  statute left in place the common law module and it's clearly the case that where the common law supplies exercises a gap filling function in that sense the common law works very much the same is is very strong evidence that a there is a gap and b that the you know there's no presumption against the agency filling the gap differently than the common law filled it and so that itself is times and his as said you know as brand x itself says that in lust in lust prior commune says this is the only reasonable view of the reading of the statute then there's room for  and and not see anderson as an impediment to that deference under under brand x just one one question i gather we don't have any published circuit of authority that addresses this upon the facts in this case and the reason for that is because if section if section seventy five o two doesn't apply in the treasury regulation which the government is relying upon doesn't apply because treasury section treasury regulation section seventy five zero two dash one only applies to internal revenue code section seventy five two we all know that the purpose of seventy five o two is to afford tax payers the ability to file their tax returns or about the date that those returns were due even though the return ultimately is received by the i r s after the date the return is due seventy five zero to a one deems that return to be timely filed based upon the post k seventy five seventy five zero two a one does not apply to this case for two separate reasons number one it only applies when the tax return is actually received by the i r s in this case the i r s disputes whether or not it received the immediate return that issue in this case number two seventy five zero two a one only applies when the return is filed at or about the da return was due april fifteenth a fourteen in this case the amended return was filed almost four months before it was actually do it was filed on june eleventh two thousand and eleven the return wasn't required to be filed until october eleventh two thousand a cover fifteenth i'm sorry two thousand and eleven so in this case you have a situation where the taxpayers actually filed the return for months before it was required to be filed so under section seventy five zero two a one that's actually cannot apply under the facts of this case the other i guess i don't not really following your argument was that's the whole dispute there the i r s says there was no delivery back in the timeframe that that matters for your client to purposes so it does seem to me that c is the more relevant purpose for her for that purpose correct i'd agree the next analysis to say whether or not seventy five zero two c one is applicable right and seventy two well it's no it's not applicable because your clients didn't send the thing by registered mail so which is where the gap think it seems to me that the regulation intends to fill this gap intends to resolve the circuit split and intends to make the full proof of of mailing by a registered etc the exclusive means of demonstrating to delivery where no actual delivery occurred where what's wrong with that thought what's wrong with that your honor is that under home concrete ok which is almost on all fours with the facts in this case in hong kong crete you have a statute that dealt with the circumstances under which the i r s could go back and seek a deficiency against a tax payer essential extending the normal three year statute of limitations to six and the issue in home concrete was whether or not an adjustment to the taxpayers basis in property tax payer reports a basis higher than it should have as a result of that the gain on that property was less than it should have been does that get thrown into the hopper in determining whether or not the taxpayer excluded more than twenty five percent of his or her gross income and colony versus the united states which was a supreme court decision the supreme court held that when congress and nat did sixty six zero one they did not intend to include a basis adjustment in part of the determination as to whether or not there'd been an omission of more than twenty five percent of the gross income what happened after colony just like what happened in this case the irish decided it was going to adopt a regulation to overrule the colony decision just like the irish decided it was going to drop the regulation in this case to overrule this court's decision in andersen and what did the supreme court say and home concrete that because the colony court found that congress did not intend to include basis adjustments in the determination of whether or not difficult to tell me as assuming that our president has the same effect as a supreme court precedent describing congressional intent and the other is our guess a reading of anderson  found that when congress enact it seventy five zero two and i'm actually reading from the opinion he says furthermore we agree with the eighth circuit that the enactment of section seventy five o two did not displace the common law presumption of delivery the statute itself does not reflect the clear intent by congress to the place displays the common law they'll box rule accordingly we declined to read section seventy five zero two as carving out exclusive exceptions to add the old common law physical delivery rule well i understand that to be saying there is a gap that congress didn't override something they didn't deal with  there is no gap because there's been a determination by this court in andersen of what the congressional intent was that is the same thing that happened in home concrete there was a determination by the supreme court in colonie as to what the congressional intent was the support i don't think you're reading the the case correctly and you're correct that the passage you just read is the key one for our purposes but i read it the wa continue with that thought and try this more simple analogy on you and brand x the supreme court said that any prior judicial construction of and ambiguous statutes are superceded by reasonable agency interpretations of those statues so here if we determine the agency's interpretation is reasonable then would you will grieve the our prior decision in andersen does not prevent us from deferring to the regulation i disagree your honor and i guess it depends on how you interpret it anderson but i disagree from the standpoint of whether the issue in this case is whether or not this court in andersen determined whether it was  the congressional intent to displace the common law mailbox rule now now counsel is taking the position that the way that judge crater city did that was based upon a traditional tool of statutory construction and that by interpreted in this statute based upon the fact that unless it's clear that the intent is to override common law the statute is not intended to override common long right and that's because it was a tool of statutory construction that somehow that changes the analysis under chevron and i'm going to quote from what was stated by the supreme court in home concreted said chevron added that f a court employing traditional tools of statutory construction ascertains that congress had an intention on the person i squashed in that issue that intention is the law and must be given effect ok that is what the supreme court held chevron requires what we have here is just judge prager said find that the congressional intent in acting seventy five zero two was not to the statute was not intended by congress to overrule common law that's a finding that is now the law the government does not get to come in and override judge prager's ins decision on the basis that there's some ambiguity just because the statute itself does not specifically address the common life issue because under well established supreme court authority if the statute doesn't address it it's assumed to pick continue to be in existence and that is the  salient point here the other point i would like to raise is even after the the statute is entitle to deference under the regulation is entitled the deference under c f r we believe that the statute should not be applied retro i have a question about that yes section seventy eight zero five b of the internal revenue code provides congress has provided the timing for the application of treasury regulations and one part of it it's to be the earliest of the following day it's the key word here is the date on which the regulation is filed with the federal register  this regulation was filed in the register on september twenty first two thousand and four and the events here took place in two thousand and eleven so i don't understand that there's any and they are made retroactive we have no dispute about the power of the commissioner to in most circumstances generally have his regulation his or her regulation be deemed retroactive the issue here though is where you have a regulation that changes supersedes and over rules well established case law on the ninth circuit that the common law mailbox that i don't see an exception for that in the statute here it the government cited reserve drilling partners first as commissioner of internal revenue that's one fifty two fed third eleven eighty one that's a case they cited i'm reading from that case right now they said the decision of the commissioner the delegate of the secretary to make a ruling or regulation retroactive is reviewed for an abuse of discretion and cite several but this isn't retroactive that's my point it's the date on which it becomes a fact to be applied which is not exactly ritual or peer review well it is retroactive to the extent that they are seeking to apply the regular regulation to a period before when it's actually determined to be fin effective and in this case they say that the commissioner abuses his discretion if giving retroactive effect to a regulation produces an unduly harsh result for an individual taxpayer reliance on settled law a specific favorable ruling constitutes evidence of a harsh result and those are similar to the montgomery ward factors that we cited in our case your honor in terms of when a determination with respect to an administrative action wh teaches existing law should be retroactively applied so i would urge this court even if it were to find that the regulation is an entire bill to deference deference under the chevron ruling that it should find that that that facts of home concrete that that are maybe unique in distinguishing in addition to the fact that the that the colony decision was a supreme court decision it was also pre pre chevron and it was also a case where the legislative there had been discussion of legislative history in the legislative history suggested that there was in fact a definitive congressional intent with respect to the issue at hand although perhaps it was unclear what that intent was that's not the circumstance that that is present here very briefly on the on the retroactivity point and i think novel argument i think people in the in the ninth that you're you're you're left whether you whether you have a circuit president or not the the first question is is the you know is the be the precedent or the or just the regulation itself statute itself i'm sorry clear on its face you know admitting no ambiguity if that's true and the regulation departs from what is clear and unambiguous then you can conclude whether there's  a prior judicial precedent or not that all the regulation is inconsistent with what the only permissible possible reading of the of the statute and therefore must be invalid and so i don't think that there's any different reliance  's very very significant practical implication of this case where there's you know millions of tax documents filed the result of the rule that is advocating is that essentially that the ability to file a refund claim the looked at the facts here and said well i don't find mr were whole the assistant credible based on factors and that that decision would would certainly be affirmed in an in clear air  review and there are going to be countless decisions like that where you know taxpayers who are similarly situated would be treated differently based on a just that the varied credibility determinations that would inherently be part of the the