case and as difficult as that may be to believe what this case started we were all young men but that was over fourteen years ago and here we are still trying to get our day in court and i think th case presents a situation where it shows the danger in using labels in the administration of justice we are seemingly labeled as a son of law case and so therefore the rules should be different and that  and that we shouldn't have our day in court and that the government whatever it may do is justified in pursuit of that tax additional task speaking of the day in court you can see that do you concede the question of whether this final notice was properly mailed to you has already been decided yes and doesn't that undercut your argument that you've been wrongfully deprived of your dane court since the notice was properly mailed and you failed to timely object to it well that's that's not quite true i mean we certainly objected to the notice i mean we we didn't file a timely petition because we didn't receive so to illustrate kind of the problem in this case i think i would like to cite a few facts that the i r s admits and some corresponding questions that are raised the st one is the iris admit that on september st of two thousand and six the iris build the videos and about seven million dollars of tax interest and penalties even though they legally could not do that and so the question this raise from that is why are we here and the irises minute that they can't they can't they couldn't have done that bill secondly the i r s also admits that they based this bill on the one of two notices and and the two  notice that were issued almost simultaneously and the two notices could not be issued at the same time iris admits that there's two notices that were mutually exclusive could not be issued at the same time y then the i r s also admits that when the tax court below in the initial proceedings questioned why it was that these two impossibly simultaneous notices were issued that the i r s lied to the court if the if the case is affirmed on appeal that's exactly what's happened because we got these two notices one that was the only notice that we expected that we petitioned and filed and pursued everything on and the other notice that we didn't receive and said oh sorry you know the notice that you petition for that we shewed at the same time as this other notice that was not correct we shouldn't have issued that notice and so your out of court because we have the sole right to decide what notice should be good and put a notice of the bad so they say and then what they said is well this other notice the effort as we call it the f b i is the actually good notice and you didn't petition that and that case  over and so you don't get it you don't get a day in court and that so they're saying in our case now in this appeal that we don't get a day in court because they unilaterally effectively withdrew the notice that we're supposed to have an automatic right to petition to the tax court from there unilaterally withdrawing that and saying you can't pursue your case because we issued another notice and we're saying that oh that's the correct notice even though you petition the other taken by october th of two hundred two thousand and three just like in our case in that case the partnership issue we're dealing with the tougher partnership rules that the partnership issue had flow through partners so it was quite clearly covered by the tougher rules and that the same as ours in that case the i r s did not on a partnership within the story year partnership statute of limitations the income for the all encompassing rule just like in our case in our case it's undisputed that the iris did not do an audit within the normal three year period and in the morello case to protect the statute of limitations the iris issued and affected out of notice of deficiency which is a term of art six days before the statute of limitations expired in our case it was eleven days before the statute expired and in fact this after you had expired anyway the i r s was was unaware of the expiration earth didn't fully understand what would happen in the subsequent juris prudence but they were attempting to issue the notice eleven days before the statute expired and the morello case they said well there's no notice a beginning of administrative proceeding and no  partnership level at the time this notice was issued so the notice has to be good well in our case that there was not none of those notices were issued within the normal period of limitations so the partnership proceeding in by the same definition of having taken no action before the statute expires had expired in our case as well the key seems to be that at least in several other circuits the rule is that limitations challenge has to be brought in the partnership proceeding only and it was here and it's an affirmative defense so if it wasn't brought it's forfeited i think that's the problem that you face now are circuit has no published authority on that but that seems to be the universal rule in all the circuits that have considered writing so so wired why doesn't that completely answer your argument well the answer is is that two fold as you noted there's no law on this on this issue in our circuit and secondly right but why should it be different well i think it's wrong rule because the the other circuits cite two issues well there's there's a code and there's a regulation that defines what a partnership item is and the partnership items are the thing that can be decided in a partnership proceeding and in the code and in the regulations there is no mention whatsoever and these are the i r s is on regulations there is no mention whatsoever that the statute of time was sufficient it was never intended to be a notice granting jurisdiction to anyone and as and as was subsequently discovered after the appeal in this case previously the i r s issue are in response to us subsequent motion filed a declaration from the revenue agent that was the one that was responsible for issuing the notice and it's clear that at all times so she had no intention of issued a notice was a mere formality because as a according to her declaration which appears at the excerpts on page three hundred and ninety one dollars she said she participated in the conference call that she counsel attorneys to discuss how to proceed with the case in order to disallow the net operating loss carryforwards inductions claimed on the taxpayer's return for two thousand so she said in view of my determination that the limitations period for adjusting for the question even though we know based on this declaration submitted by the ira us under penalty of perjury that this this this that was meant to not did not serve a purpose for nine hundred and ninety nine dollars it served no purpose s position that again is essentially well you can't ask that question because there it was issued you know that it was issued it was sent to the right address so you can't even ask if there was any purpose to this notice if it was really intended to serve and ninety it was just being done as a formality so the morello case as i mentioned i think is a really good case to say i mean the issue in that case was basically reviewing the reason you know that this was just this agent was told by some advisors that this was a notice that had to be mailed and it was mailed and it was sent to the legally sufficient address but it serves no purpose and and yet the i r s then is saying oh no no no one we've got to put all of our stock in and that means that the petition you filed in response to the notice you received that that the court had jurisdiction over and would give you the opportunity to raise all of these issues and potentially the statute of limitations issue that noted that case can't go forward because we've decided that this notice we issued for no purpose is the real notice and that's that's really the just of our problem here is that you know  the government has flip flopped they've lied to the court and and the whole goal of this and i'm sure it is the goal of the government is this is a sign of us case and so they should know the tax period you know doesn't matter what we did it doesn't matter what we told the court before it doesn't matter what we're doing now doesn't matter that we sat on this issue for a year to make sure that the taxpayers couldn't file a petition in response to the ball here you know if this was such an obvious quite quite a remarkable situation and made entirely more remarkable by this declaration of the revenue agent deborah smyth which basically explained what she was doing and but the tax court being the tax court  liking tax shelters and generally ruling in favor of the i r s they were they said oh no no no we can't we can't look and see the reason why these two notices were issued even though they couldn't be we can't ask that question why which of the notices that is that is no good which of the two is no good because we have a case called green birds express it says we never look behind the notice of deficiency well the greenberg's express case was a case in which two members or multiple members of the gambino family were alleging that the i r s was in appropriately selecting them for audit and not applying proper techniques the court said that the notice of deficiency is the noble we review it we  legally sufficient they didn't in fact receive it and as we know that is a possibility a notice can be lawfully given and valid and yet not actually received and i'd like you to assume for the sake of my question that that is the case here once that if if someone does not actually receive a valid place serve no us and their time to make the challenge runs out is there any sort of equitable tolling once they learn of it that would allow them to challenge it at a later time no there's no accident there's no equitable equitable toll in these deadlines or jurisdictional and that's the scouts by the supreme court in a case called united states versus woods and there's also a case out of the th circuit it might be called a i am that also said specifically that one hundred and fifty day deadline is but i'd like to return to the premise of your question which is asking me to accept that the validly mailed and not received and i would note that based on the record toward the beginning of this case the roshan's actually conceded that they received the f and this is on page one thousand eight hundred and thirty seven dollars of the excerpts of record where it says within a period of less than two weeks petitioners received three separate mailings from respondent which notified the petitioners one that respondent had completed a review of the partnership and was asserting adjustment through an f p a two that the f p a was untimely and they had the right to make an election and three is the notice of deficiency now obviously its own point of the dros and change their position on that matter but you know and ultimately as this court held the issue is not actual receipt the issue is whether we properly mailed it and if the court review see oral argument transcript from the st argument before this court the court made very clear at that time that it did not really have patience  s made a mistake by mailing the f pod to the address that they told the i r s to mail it to but that aside i don't think it's necessarily settled that they did not receive the f p a and there's be issued so you know i think there have been inconsistent positions taken in this case but fundamentally i don't think it matters because this court has already decided that the f pall was valid and it necessarily follows if the f b i is valid a force your right the notice of deficiency that was issued before the conclusion of the partnership proceedings was invalid so essentially both things are the law of the case and not only that it's a statutory basis for the preclusion because that's the way to have for works as the court observed earlier this or says that the tax treatment of partnership items shall be determined at the partnership level and that section six thousand two hundred and twenty one and then that determination becomes conclusive so essentially there precluded from arguing what they're trying to argue in this case for several reasons and most prominently that the village idiot of the f a force your eyes shows the invalidity of the notice of deficiency so i mean it's true certainly that the i r s issued these two notices and in retrospect the notice of the fissions he turns out to be invalid but the question then is what's the legal effect of the fact that the i r s issued these two notices and the yes you argue the notice of deficiency is invalid your opposition says that the  so this court has already decided that the f b i was valid and in its prior opinion and i quote from page one hundred and fifty eight of the excerpts of record says because we determine that the properly noticed and therefore so when the this court went on the later in the same opinion on page one hundred and sixty one of the excerpt to say that the tax court never had jurisdiction over such deficiency in the st place nothing to fear from the dragoons getting again court and that separate and apart from the invalidity of their transaction the fact is that if they win on their argument that they elected out of teflon which appears to be the argument that they're making in their brief although neither of them charging nor the dissent agreed with them on that but if they win on the argument that they elected out of capital then they lose their statute of limitations argument which they can't raise here any  limitations so open so the government has no incentive to deny them their day in court and that's not what we're trying to do in any event that hats were actually recognize this paradox and footnote nine of it's opinion which  and i guess i would also like to a few of the proposition that the government you know st took one view of why  ased on the record the i r s to not suddenly changed story on that matter and in fact at the hearing in two thousand and six before judge vasquez the i r s said that there were several purposes that were served by issuing both notices and one of them was essentially to prevent whipsaw it said that it's not clear from this returns as we know the weren't subject to taffer although we certainly thought they were i think that's certainly a bona fide reason for taking the whipsaw opposition but then the i r s also said which is what the bedrosian say was a new reason trotted out years later ninety nine to two thousand so the fact is at the beginning of the situation when a lot of things were in flux and the return to the us and the laws evolving doing this could serve another of purposes of course it turned out the notice of deficiency was invalid but again the question is then what's the legal effect and legal effect is that the f part was valid in the notice of the it was not and that something is a lot of tax court was on including the decision half and then moving forward to when the revenue agent filed her declaration which is what drove this one why on for their case she did again reiterated this reason that well you know and the tax court majority noted this that what can happen is whichever notice the i r s issues the tax payers will turn around and say it should have been a different notice and we've seen cases like that  in any event we're not trying to deny them their game in court there were certainly you know there may have been missteps by both sides in this case the question again is what is the legal effect of those missteps and the legal effect is as this court's already held the f r was valid the limitations period is a partnership i don't mean that something that as a court observed is one of actually the most well thank you your honor said several points with respect to the government's presentation the government tries to suggest that there is still an open issue with respect to the whether that f was actually received or not there and i couldn't find it in the short notice that there is actually a finding by the court either the tax court or the th circuit in the opinion before that they didn't receive it so that whatever may have meant did not did not did the taxpayers did addresses including the one that the accountant required and you know so on and so forth so it's certainly my reading of our opinion or our disposition suggests i believe that they did receive i i have to go back and look i don't believe well i think you may be right that the th circuit opinion the prior opinion didn't you know specifically find or reciting either way but there is a finding somewhere in this record  record that the notice was the f b i was not received it's not not just going back to the original hearing on this motion when the when the parties weren't sure what was going on secondly with respect to of the court it is certainly the ruling of the court on the f that it was mailed properly and mail proper mailing is is one of the requirements the issue is bigger than that in our view the issue  fact there was no proceeding there yes there was the notice the notice was issued and the court has determined that it was properly mailed but is it valid was there a proceeding because it is the existence of the partnership proceeding that precludes the affected item the notice of deficiency from being issued and that's what the mayor morello case gets into is that in morello they argued the partnership proceeding wasn't over and so the notice was premature so kind of the flip side it in in some respects and the and th is or in a published opinion determined that yes we can look and see if the partnership proceeding was over and in this case we did we deem that it wasn't so the notice was valid the taxpayer was on the other side of that but but the validity of was not limited just to it's the mailing issue and that's what the tax court seemed to be hung up on it was the mailing issue and the fact that they can't even ask the question of why two notices that couldn't be issued at the same time were so the that the discussion about it damaging our our statute of limitations argued that argument if we elect  just it's temporarily wrong because this was if we elect out we elect it out after the statute of limitation expired so that the agreement that the government was alluding to in the ir argument is in fact had expired before the election would be it's not a retroactive election which is different from the six thousand two hundred and thirty one dollars g issue that she cited and i see that's my