case number seven hundred twenty three twenty one united states of america versus state of albert generale at all or are given not to exceed fifteen minutes per side mr cohen for the  good morning may it please the court i'm stephen cohen appearing for the opponents richard bey har in the state of albert shapiro i would like to reserve three minutes for rebuttal the district court originally held that the plane limitations language of twenty six u s c sixty five zero two a did not provide that a timely proceeding in one court would toll the statute with respect to a later supper proceeding in another court subsequently the district court held that equitable correct in its interpretation of the statutory language but incorrect in applying tolling the i r s believes that the district court was incorrect in its interpretation of the statutory language and that resort to equitable tolling was unnecessary was even amenable to tolling or to apply the five part test of so poem versus us can i ask you so i'm inclined to think there's a lot to what you're saying about the plain language of six five two a particularly the contrast between a proceeding and then the reference to the proceeding that seems really powerful i'm disinclined to think that given how highly ridiculous ated the code is that we  get to make up equitable tolling exceptions on top of that there are already specific tolling provisions it seems very strange to let courts add more but i'm still puzzled by the fact that no one seems to have embraced your position i mean you know why this everything i'm saying i believe i think is right it seems as if it's consistent with your position but then i read their brief and it's i see all these cases that are doing the opposite and that gives me a lot of pause so what's going on yes and when no one figured this out or i just don't get it i don't understand either but here's my here's my understanding of the case law as as to equitable tolling i don't believe that any of the case law supports equitable tolling the other side has chosen not to cite any i r s cases or any specific cases where equitable tolling has been applied i think they have abandoned supporting the district court's decision on that basis and they have not directly controverted those issues so i don't believe that the case law does support equitable tolling i would agree with you however judge that that there is considerable discussion in the case law that there is a possibility that a proceeding in one court could could operate the toll of proceeding in a separate court but here's the distinction that appears in the case law almost all of the case law cited by the i r s involves a foreclosure or other collection action after a judgment has been obtained some of those judgments were obtained in probate court so the statute does not address or limit the ability of the i r s to enforce a judgment that's been timely obtained i r s can file enforcement actions in any proper jurisdiction to go after property or other assets once the judgment has been obtained the end result of that seems to be to this c pending in probate court for reasons that we don't understand your position is they then would have had to start a second proceeding before the ten year period either yes your honor either start a proceeding so what i mean what's the a proceeding then the district court held and i believe correctly that a proceeding in one court does not total limitations period as to a proceeding in a different court however we've we've we've argued strongly that this was not a  proceeding under michigan probate law which was not examined in any level of detail in the district court or by the district judge a creditor can can make a claim in one of two ways it can either bring notice of the claim to the personal representative or can file a proceeding an actual action in probate court there was no action filed in probate court there was no disc yvan under michigan statutes which is cited in the principal brief and in the  manner of giving notice there are two options one is to provide the notice directly to the personal representative or to file the notice in court the i rest chose to file the notice in court that does not start that is relevant to this question that a proof of claim is a pretty well why am i wrong in that your honor the the whether it whether a whether a claim is a proceeding attention here and at times the i r s claims and i'm being told that michigan law doesn't control and that statutes of limitation don't control the i r s because the federal supremacy is not bound by those and then we're also saying but look michigan law says that for statute of limitations purposes a claim is the same as a proceeding i don't think the appellee can have it both ways the statute that you're referring to is not a broad statement that a claim is equivalent to a proceeding it's more narrow it says for purposes of michigan statutes of limitation a claim is similar is equivalent to a proceeding so if we're second the inconsistency here which is appropriate look at the cases as i understand it also say that approval claim isn't a proceeding we're only serves as providing notice to the administrator of the  claim if were to recall correct if the proof of claim is either rejected by the personal representative or is untimely or otherwise defective then it's incumbent on the creditor to file an actual proceeding within sixty days in the probate court that never happened there was no proceeding filed there was no petition filed on the claim there were no proceedings whatsoever there were no hearings ime i doubt in my experience that the court ever knew of the existence of the claim that claim was placed into the file by the clerk the there were no judicial proceedings conducted on it here by the way it's all an explanation as to why six five zero three b you know what i'm referring to when i said is this you know number for him to you are you referring to the exceptions yeah exactly six five zero three b so this is the point of access of taxpayer control of custody of court so that doesn't apply because it also requires a proceeding not exactly your honor the you know does have the language preceding it it does but but here's here's my understanding of the application of that and by the way the i r s agrees i believe with my interpretation because they didn't cite that the reason they didn't cite that that exception is because the assets here were not under the control of the probate court in michigan we have supervised probate and unsupervised probate they cited this for purposes of a remain and they said their position was if we lose on the other stuff we want this sent back to get relief under this of course that that tells you a lot about their position why didn't they use it originally they didn't i don't they're using it now i mean i don't know what that means are i was late you know sometimes that's the answer the the and the answer is in the iris regs explicitly state this the regulations say that in unsupervised probate proceedings the assets are not under the control of the court for purposes of this exception that's in the regs and there's no doubt so i get that but i'm just curious do you also say because it also refers to proceedings that another reason this doesn't apply to you realize what i'm saying it's the controller custody of the court in any proceeding before any court so this proceeding it all is that also not a  because he considered it untimely and under michigan probate law he is not obligated to make that rejection so it stood rejected and it was incumbent upon what makes the why does it stand rejected as opposed to standing on rejected if the administrator does nothing in response to the filing of the perfectly because under michigan law the proof of claim is not a proof of claim it is untimely filed and that's a matter of michigan probate along which has not been fully fleshed out unfortunately have used the levy approach here is there another way i mean because their concerns when you read the briefs you're thinking oh my gosh there's a lot of problems that develop if we can force this statute of limitation written are there other any other ways they could have done this and protect themselves and i would hate to give them strategic advice but they they intentionally did not advise that they can't use against your client any more hopefully they could have filed a levy but they chose not to there's a specific exception in the statute as the panel knows for a levy they chose not to in fact the original complaint had a separate count two for a lien and they dismissed that as well i don't know why but the only claim left in the complaint was for  reducing the claim to judgment and unfortunately it is clearly barred by the generous ten year statute of limitations thank you to collect a tax in court within ten years of the time the tax was assessed the government may then bring other proceedings even outside of that ten years have any of those courts or at least how many of them have come to grips with the  them has to have specifically discussed of the a vital part of the roof of how bad the law is and it's time for this panel to straighten things out no your honor in fact that language has been the same sense at least nine hundred fifty four and this court said in soto and even the ninth circuit case of my missing it just seemed so clear to me a couple things about that one is even let's assume for the sake of argument values intentional it's meaningful it means a specific singular proceeding not withstanding sotto shorter on the other cases the result th either that the government can't bring in more than one collection proceeding or that the statute is satisfied after one single singular proceeding both of those interpretations are available even if the switch from a is but only within ten years of assessment liens of movies become much less useful here is why the flush languages section sixty five zero two and a makes clear that levy is extend are valid and enforceable more than ten years after assessment in fact if the government commences any proceeding in court under that flash flash language it can continue to make levees more than ten years after this that's really good for you that's good for us in section sixty three trying to make this same point with respect to liens is that a new will case i think i'm with you although i'm not one hundred percent sure but why isn't that become a new proceeding even when you go down the levee route then you levies liens whatever but then that starts a new proceeding and that starts the ten year clock that's what it is and that the way to reconcile all of this you know you and i think as as we read the statute it is a proceeding in court within ten years of assessment so the clock always starts at assessment and on the state's view we only get one proceeding within ten years of assessment be that proceeding you know a suit to enforce the judgment as to foreclose on a tax lien a suit to enforce a levy a claim in probate court or something out which just help me i don't know this is what you do when you go down the levy lean route and you're i think what you were saying is that has a big stop sign because then what do you do if you can't enforce it the only answer is a proceeding is that is that the point you're about to make  judgment leads to a proceeding and you're saying they want to allow that because that's there's only one proceedings that is that where we are right now yes you're on what i why isn't the answer to that which still respects a you can still have new proceedings i mean and in a proceeding is it possible to have a proceeding growing growing out of a levy levy lien approach certainly your honor it is that have to do it under within ten years under the state under the automatically attach at that as the date of recess and and their administrative proceedings to enforce both of those but in some cases the iris needs to come into court either to foreclose on a tax lien under section seventy four or three or to enforce a law under section sixty three thirty two d those are proceedings in court to collect tax those fall within the language of sixty five zero to every court to look at this as assumes they fall within language or sixty five or two way and so on the estates argument those types of levies more than ten years from assessment and there's go ahead will judge me we're going to say something who would tell me just again i'm i'm just so ignorant of so many parts of this it's still valuable to you to have these leans right that means people can't dispose of the property without coming to grips with the government's ownership in theoretical yes your honor but that's not just the a radical that's a pretty big point people want property for clean so i mean why isn't that another way of thinking about this you can't start a new judicial proceeding to enforce the lein but the lien is still a pretty darn useful device for making sure people don't dispose of the property without coming to grips with the government's ownership in it it could be your honor but there is there's no way if we get to a point where we need to bring a court proceeding to collect to actually collect the tax it will just hand out fair indefinitely your old job is to collect money for the government does a lean in  extends the time for making levies until the tax becomes unenforceable now the time for making love is under sixty five or to a one itself is generally ten years for my sas and so we are for me if we reach sixty five or to a one to say that no matter what the government does the tax becomes unforeseeable by a proceeding in court ten years after assessment that the first language doesn't extend anything it's extending the time for making for making lovise from ten years after assessment until ten with the language of sixty five with the flush language you would have to read into the statute except for proceedings during for celebrities and that language these are argument is that what what may what some may think is clear about the language of the statute then put in any statutory section that is not part of any of the enumerated statutory subsections i believe it comes from the fact of language just flush to the margin and that helps the definition that helps the understanding  principal purpose of those suits is precisely to extend the statute of limitations for collections so that we can do everything we could do up to ten years from assessment under sixty five o two a further in the future the reduce the assessment of judgment as far as i understand it doesn't give the i r s any new collection methods any new authority it just extends the period for using it to existing authority well and here is a long time though it is a long time honor but it's undeniably the case and if you look at the discussion of the suits in the internal revenue manual you'll see that there are cases in which taxpayers come into assets you know start making more money close to the ten year period or the i believes that they will have the taxpayer will have additional assets more than ten years from the assessment and it's in those cases that the i r s typically files that suit to reduce its estimate to judgment so that it can finish collecting the tax more than ten years after the assessment and i would note your honor that you know the uniform judicial interpretation of section sixty five zero two way is very similar to the interpretation of the criminal statute of limitations which has much more severe consequences for defendants so long as the government brings an indictment within the five year period in the relevant statute superseding indictment related to the same crimes relate back to the original indictment  the same same token here so long as the government brings a suit to collect tax within ten years of assessment puts the taxpayer on notice that the government is going to be you know using everything it can to collect this tax that it can bring further collection actions outside that period what you what your response to today's are you know it's already in the breach as to why you didn't bring any proceeding within ten years because filing a group a claim  honor it's along the lines of what you suggested the court to address this issue have found that a proof of claim filed in probate court is a proceeding in court for purposes of section sixty five a two way if one of two factors is present one is that state law treats a proof of claim as equivalent or similar to a proceeding for purposes of a statute of limitation and as you said judge me take michigan law expressly does at the other is that a proof of claim is a proceeding in court tomorrow if it is a step in or toward ultimately to get litigation ultimate resolution of the climb in a court and that's also true under michigan law because if a claim is properly presented it is either constructively allowed as it was here because the personal representative didn't respond to it or it's disallowed in which case the creditor can then go commence a formal proceeding in court the what you've said is the exact opposite of what your fellow counsel says you say it constructively admitted because he didn't object to it he says that it's presumptively not admitted whether the administrative did something or not yes your honor and it's expressly constructively admitted under michigan law it's section seven hundred thirty eight zero three or thirty eight zero four i forget which one off the top of my head of michigan on it cited in our brief that it's constructively admitted unless it's expressly disallowed if the cla was constructively admitted why did the nothing seemingly ever happen after you filed your group of your own i have to go outside the record to answer that question my understanding is that the probate proceeding has been held up by disputes among members of mr charles family in which the government is not involved and therefore we kept anything anybody has cited in this case that you were that you needed to do after filing  proof of claim and then basically not hearing back no your honor because our proof of claim has been filed it's constructively allowed when the estate is distributed the united states should be able to collect  something you could have done you could have gone to the probate court and said hey what's going on we've been waiting here for years we are much there must be some mechanism to have done that i presume there is your honor i don't know if there is or not if there is and we flip probably briefly to the equitable tolling argument if you assume for a second that is available then does the fact that you didn't do anything that you could have done in a probate proceeding go to whether you have whether you exercise diligence in order win or lose on the statutory construction yes your honor you've given lots of really good reasons why you should win what would you if you had to write the opinion what would you do with the dichotomy would you say error what's your how do you or maybe you know some grammar principle that i don't know that i'm getting wrong here what we how would we because you know you would knowledge no one has come to grips with that language so we're now forced to come to grips with that language would we say your honor i would say one of two things one is that this is only a switch in articles and a switch in articles cannot be dispositive of the meaning of a statute it's not enough standing alone to impart clear language t alternate argument would be that is meaningful it singular it's specific and therefore the statute of limitations requires the united states only to file one single collection proceeding within ten years and if that happens that the statute is speaking only of one proceeding then once we file one proceeding the statute is satisfied it's out of play and we can file other proceedings it's official yes even though the flush language says it's only the time for levy that should be extended yes your honor but there's nothing about the plain language in the flusher language that speaks to the effect of one proceeding on other proceedings the district court's concern here therefore has to come from the excuse your uni is canon and mr c but that can and doesn't apply here for two reasons one is that the background principle of law here is that statutes of limitation that run against the government are strictly construed in the government's favor and i do not meaningful to me keep going the other your honor is that so that leans and levees were treated the same way it did nothing about proceedings in court just as the statutory language is nothing about proceedings in court there is nothing in that flash language that says you know what happens when we bring one proceeding in court within ten years ok if there are no further questions thank you very much  the flushing language would be completely unnecessary under the government's interpretation it was put in there specifically to create an exception to the ten year statute and it does indicate that the that congress understood what it was saying that it was talking about a proceeding that had to be brought within ten years nothing nothing in our argument ties the irises hands in any way or is unfair to them  file as many proceedings as they want to reduce a claim to judgment within the ten years i don't know why they would want to file more than one but they could have filed ten actions within the ten year statute of limitations there's no limitation on that in why is that intuitively it's it's just the statute of limitations it doesn't require that it's a statute of limitations that's trying to say and i said i think saying in a clear way if you bring a proceeding you must bring it within ten years that's all it says that i rest is stretching that to say if we bring a proceeding in one court it tolls the action it renders the ten year statute of limitation completely irrelevant and we can final as many proceedings as we want in other courts important thing to recognize is almost all of the cases cited by the i r s involve collection after entry of a judgment that's a key point because the ten year statute of limitations doesn't affect collection after a judgment's been entered so we're not tying the irises hands they can final being on point to a those cases u s versus sexy and us vs i'm sorry both both cases both of the published cases found that claim in probate court was not a proceeding in court and went against the i r s in those two cases the only case that went the irises way was the unpublished warner case which i believe is an outlier and warner did not involve michigan's statutory scheme the proper was well i have your just one as i'm sure i'm misunderstanding something but it would be helpful if you could tell me what i'm missing some looking at the flush language so if the timely proceeding court for collection is commenced so that means within the ten year period right it's referring to proceeding so the preceding the period during which the tax may be collected by levy shall be extended so just so i'm getting what's going on that means after ten years you could use a levy approach to collect from the proceeding the judgement whatever so far so good yes ok and then levies allow for liens right so one option i explored with the i r s as well what's the big deal you have liens people have to deal with those  i take it you would say you couldn't file a new judgment action on that lien that's correct because that's a proceeding is and that would just circumvent everything and they missed the deadline by some all right so you can't start the whole thing over with a new proceeding that was what i was trying to figure out but you just don't think that works that's why this is not an exercise in futility that's why this is an exercise and we will be dispositive we would ask for a reversal because the specific basis for the decision was  and everyone everyone before this panel agrees that tolling was an incorrect decision by the district court which is one of the thing or there are other levee lean things that i mean so i was trying to explore with the government what downs they could do to try to deal with what seems some oddities about your interpretation or other features of the levy lien approach that fix things for other taxpayers and make this look less odd not to my knowledge your honor but there are ten after the ten year period regardless of whether you commence any other proceeding or not that is correct so that seems so it just seems again to be inconsistent with this idea that there's not a statue limitations or it's get out my own much good question what is the answer i can't i can't resolve it to my own satisfaction let alone let alone yours what i can do is i can resort to the clear language of the statute and i can look at what the district court did the district court did not undertake an examination of michigan law it did not undertake an interpretation of the statute except to the extent it said that it agreed with the appellant and that's the only record that we have so the only the whole the proper thing that i would suggest is if the court is not inclined to reject the argument that the appellant has made here then remand is appropriate for finding the facts for for proceedings to understand michigan law and the specific facts here put every man has to address the question of asking them to do by way of the perceiving does not have to be reduced to judgment within the ten years but the proceeding has to be started within the ten years and then reduced to judgment eventually here there was never a proceeding started why is that a factual question for purposes of the district judge to examine more fully it's factually and legal the district court is required by the case law to examine the nature and