liability a breach at the very least it was that was the only issue the law whether or not government was liable for the breach of the stipulation agreement for damages whether was paragraph fourteen or prograf one two or paragraph twenty one  fundamental issue was whether or not the government was liable for breach and our position was that it was on the spewed and based on interpretation of the contract that the government was liable i would like to focus your honour's on paragraph fourteen which seems to be like the central dispute you're going to regard soon let me ask you i'm scratching my head a little bit about one one item here on page three of the government's brief it says fourteen with agreement and subject to paragraph fourteen feet pit no i or one of my colleagues i'm sure will ask the government about that but how do you read that is the government saying you know let's start all over again what have got any conversations in light of this statement and we have your honour's in fact we were able to to some extent resolve one of the issues that was the two thousand and four tax consequence calculation which is not before your honor's a two thousand and three the two thousand and three no we have not because we have some i guess a little bit different issue one of the fundamental and i think a fundamental misinterpretation of paragraph fourteen is this issue that judge grigsby found and the government continues to argue that as a condition proceed in to any payment whatsoever by the u s postal service under paragraph fourteen that my cli fourteen and it said pages ten eleven of my brief and i think appendix eighty eighty nine and ninety pages eighty nine ninety if you look at the language of that paragraph the only mention of our clients my client i'm only she did as an alternative argument when they were dealing with i think it ios the issue by two thousand and six i was quite a bit so her putting aside that sort of silly argument that you can't put in first class mail as opposed to  certified mail why is why aren't those calculations enough to just get at least i know you debate whether or not that they've covered the full consequences it is one of our arguments your honor that and it's  really a fallback argument to some extent is that in our position is that they should have paid at least the account and calculated them out back in february of two thousand and five when the cent even though they had an account they hired an account back in two thousand and five and calculated what they considered to be the tax liability that was the thirty three thousand six hundred ninety one dollar right acquired with regard to any tax consequences of mission doesn't have to be a tax accountant because it's that was that was not mandatory or paragraph fourteen anything and they submitted something in january of two thousand and five after mr kessler who was the represent representative submitted a letter to mr vander sandy and mrs van to send the saying we will not pay you will you provide us with this documentation we have hired the c p a mr michelson to handle this and so mr vander sandy on behalf of his wife back then submitted all the documentation that mr castro was asking for expecting to account eventually it happens that's this is what i don't understand i said to this piece why is this piece still out there so the government takes what i like i said i think is a silly position that because you said it in the mail rather than certified mail they that because really that substantial compliance with the contract should should say that just the fact that they got it right in the mail is enough but why but the government's also saying that that happened back in january two thousand were they no but in the contract it says once they get it they have to pay it and they have to pay it within a certain period of writing you know when you were back before the court a federal claims you could have said all right at least as to this part we're going to send it to you again and then they would have had to pay they say right now you could send it to him again and they'd have to as a position that's not the way the contract is written the contract there is a breach that that that is a problem because paragraph fourteen requires in the pay interest from the date that is due if you look at paragraph fourteen and this is the only way to really interpret and i like to take you through towards the middle of paragraph one of the talks about the accounting calculation the judge judge grigsby found that as a condition proceeded to the government having to make any payment whatsoever that there had to be a count prepared tax calculation and that is not what paragraph fourteen sets right paragraph fourteen says if a if there isn't a tax account calculated number that's provided by mr a fan of sending them the government one hundred eighty days to pay that if you look further in paragraph fourteen it says the agency may only challenge the complainant submission for tax consequences doesn't mention or conditional upon an accountant judge newman had about exactly how much is at stake here in their descending warrant the court of federal claims said that on this tax consequences issue as i understand it it said that  the government was only liable for the taxes owed because she would receive her wages and leave payments in a single lump sum ok right and i think  understand it they did that takes out of play a lot of the money that you were asking for before ok we could next if if we were to affirm that decision in then to sandy one to which i just referred does that mean that all the tax consequences money that we're talking about is this dispute about thirty three thousand nine hundred sixty one that mr michelson presented or on the other hand the what forty three thousand that your account mr gomez came for the am i right on that well off of the originally what the argument was your honor is that if you look at it just as adverse tax consequences but all the tax concepts you got a very large sum of money in two thousand and three and the tax consequence of that was for tax liability because you didn't do any other well known to them but you're getting back to my question if we if we were to agree with what the court of claims said that i just referred to one van descendant what is all that we're arguing about here in terms of tax consequences this thirty three thousand on the one hand of the forty whatever it is a thousand dollar difference ok or no i mean i realize that you dispute them to send me one but i just want to make sure i understood where we are if we don't agree with you on that right it is a breach breach argument thousand and five and then the you presented your figures in april of two thousand and six and then you it's your contention based on the pleading of the court  the wasn't done by can only count and they then had forty five days from that date to submit to his family sandy their accounts calculations and then after that if there was any disagreement on the tax consequences and he not only that and they can't calculate tax consequences any disagreement on the tax consequences the agency shall be required to make timely payment of the non disputed portion of the tax cuts but never did that you have to before we can pay you you have to get mccown calculate your average adverts x consequences that was not done till much later in two thousand and six when the e e o c took that position in the decision and hand  after that was back in the later for two thousand and five they had a forty five day window to give mr van a cent of their account scott calculations they failed to do that and then had to pay miss fanous and the undisputed amount which they knew about back in february of two thousand and five which was thirty three thousand six ninety one they didn't do that so right then there's a breach of paragraph fourteen so the blue summary judgment that what as you assume it comes down to this we have the government figure of thirty three thousand and six ninety one and then we have the gomez figure that's about eight thousand dollars more are you willing to simply accept for purposes of resolving the case the thirty three thousand figure certainly certainly it was time case is the court with the court of federal claims held below is that when mr vander sandy provides an accounting calculated tax consequence paragraph or team will start and the government is still obligated under paragraph worked so that was calculations you admit that your accountant came up with at least that much so why hasn't that been paid to you could even you know you could even have paid it and say we're not admitting any liability as to anything else but these that it's just going to be paid right your heart to two parts of that first part as far as the calculations and everybody's been talking about the thirty three thousand dollars figure what that was based on is submissions by this fantasy and as is reflected in our brief most of those calculations were performed based on tax documents except for one year that weren't filed in discovery below based on successful motion to compel we figured we got the tax stocks tax documents they don't have any more of anderson's do not have anymore the actual tax records we had to go and get the the tax transcripts and if you compare the tax transcripts what you see is what they submitted their total tax burden was one hundred twenty three thousand dollars or one hundred thirty three thousand dollars they submitted a multiple times a change by ten thousand dollars but when you see what they actually paid which was finalized a couple months after they file their suit at the port of their own claims their actual tax burden for that year was about eighty five thousand so although it's sort of been presented as oh this was all known this was all accepted that that's not actually that's not actually the case ron and then there was a spitzer saying the government has been fighting for fift teen years not to pay this woman and i get the fact that they didn't like the fact that she won at the scene and that these payments were made but they've got to pay those even even under the government's theory of what tax consequences are why didn't the government just say let's figure this out and let's get this part i think that's correct john but here's here's the premise that that is lying on what that promise is lying on is that at that time and we're going back to around the oath for over five timers for him is that at that time everything was clean and everybody knew exactly what was going on and paragraph and everybody was operating pursuant to paragraph works and if you look in my brief your honor in the fact section you'll see around then they make multiple filings on january tenth to the e e o c so at this point although hindsight being twenty twenty the postal service probably should have said well ok we're going to we're going to stay in paragraph fourteen we're going to give her whatever she has the fact is there was a tremendous amount of confusion created by mr sandison the pursuing multiple avenues of recovery i just can't even fathom how many government resources have been spent on this when you could sit i don't think we kind of you are given their position that they were on their entire tax consequences which in their complaint they alleged as three hundred thousand dollars and they were also alleging that she was propped improperly terminated and that she should have gotten her full pay from when she was terminated all the way going up until today so i when you when you narrow it down to that little issue your honor i completely agree it seems the government's behavior on it seems unreasonable properly as from this let's assume for the moment we agree with you on the decision of then to send one that she's only entitled to a limited amount of tax consequences yes ok assume we agree with you on her terminations claim that she was improperly issue about the two thousand and three taxes ok under those circumstances to resolve this lengthy litigation forgetting that ill feelings between the postal service and everybody in the us with the government just be willing to pay the thirty three thousand to resolve it given the premise i gave you about your prevailing on all those other things yes you are and i can give you an example that's essentially what happened with the two thousand and four tax cuts with the leverage you're saying if you win on those three issues i mentioned you're the government is prepared not to say today that the government is prepared to give her the thirty three thousand and six ninety one that mr michelson came up with granted i understand you say he did stood on figures that weren't up to snuff in terms of actual tax things but to resolve it with the government willing to pay that your honor if this case is affirmed and the postal service receives an amount like that the postal service is not going to want to make receives an amount like because it'll have to be submitted john so that this is the other thing you've got the tax accountants you've had the accountant calculations and the thirty three thousand since two thousand and five right now and you keep saying well it all got confused but the reality is when a party has an affirmative obligation under a contract it's it is it doesn't excuse a breach if you say someone else wanted more under the contract the other party wanted more you still have to comply with your affirmative obligation under the contract no you're i understand but also you're saying we've got to start all over even though you've based on the documents that i described earlier which were on file but it doesn't say what it says is she has to have an accountant that does the assessment and submit right and you have one opportunity to challenge that and you went ahead and you got your own calculations though you didn't turn them over to her and so you've already made that a dish that's separate calculation and the contract says that the undisputed amount has to be paid within forty five days  calculations were made just just to be clear our calculations were made in two thousand and five her calculations were not submitted later until two thousand and six under the construct but even so you've had both yes since at least two thousand the same doc the same material your honor i wouldn't say i wouldn't consider that would that would take us outside the construct of the case you would have to be presented to us that would have to be pursuant to a settlement agreement you are because the government is not going to wind up back in court over this or are we do not want to be back in court together what happened in oh six and then the the that we deem that as a proper submission a substantial compliance so that what you then have before you guess might my caution with that your honor i believe is that based on that being a substantial compliance i think there would be additional arguments to be made on playing to spare half because that wouldn't be one hundred percent consistent with what was decided below  that's what we will ask mr han a little bit on on rebuttal as to how this i mean i think the government has a very strong case of all those other points that i sort of went through and you know maybe that's the also bring the court's attention is there is the issue of paragraph twenty one and that was properly dismissed as implausible based on this and it seemed having never identified any specific laws benefits or corresponding damages that could result from early and again i just want to be clear sitting here today that might my concern with a resolution that a that would say the two thousand and six submission was samantha compliance first of all i think i think the courts will claims got it one hundred percent correct that that needs to be viewed in the context of when it was that the court in prior question has been focused on the issue of the of the of how the letter was sent and that that you know that is an issue see case and given what had happened with the parties up to that point the postal service simply did not you know did not view that as a restart of the paragraph working process and more importantly four months later so we're four months forward of having received that your honor and again we agree that we received it four months after that they went to district court and they filed a complaint that sought all tax consequences so that was within four months so despite having received that and our being within our one hundred eighty days to pay it within four months they had gone to district court that i still don't understand why that had decided that the government's obligations under the contract were met and that any further obligations were extinguished so i think that the postal service is actions have to be considered in light of that holding body as well for all these reasons and the because let's assume that number one the court agrees with the government on that said in one what the limits of the tax consequences liability o arguing you would lose on those points but then are you willing under that circumstance to then accept with no ifs ands or buts the thirty three thousand and six ninety one  fashioned was to understand the fundamental dispute between all tax consequences and adverse tax consequences which i think what you're saying your honour's at venice anyone an as your honour's have pointed out not doing the government not taking upon itself to do what it was supposed to do in a paragraph fourteen which was at the very least at that time when it was calculated back in february two thousand and five haying to miss fan of the undisputed amount which was thirty three thousand six ninety one later ron is fantasy through or then counsel submitted their own tax consequence calculation through another account that was in april end of april two thousand and six judge to set a condition absolute condition proceeding of the account calculated tax consequences as being a way for the government not to pay anything which i think is wrong i think that's just wrong decision  that they still had an obligation to which they did and they were acting consistently with that with my interpretation of the contract they're acting cicely because they went and hired and i cannot even though mr bennett sandy  account calculations to those funds to pay your account did they do that no they haven't paid a dime and paid a single penny fifteen years later but you know i the very least there was a breach there there should have been liability at least