government argues that our experts have simply drawn conclusions based on the evidence and interpreted the evidence that is not correct their declarations are evidence the government suggests that you could draw different conclusions from this material but in order to do that they have to assert something they can't prove for example we could have been employing illegal aliens there isn't any evidence of that let me ask you  course of mergers and transactions that occurred with respect to the assets of this business the records have been thoroughly searched for many different places i myself have been involved in that  do not know where they are what's so good about that was an explanation number one and number two it's irrelevant the fact remains you don't have the records well your honor it's not what is relevant in my mind is that the government has accepted the explanation that you have come to the explanation no records they've never asserted that that that because of the specific records aren't existence we can't prove our case what they were certain is that the evidence that we have proffered your honor is insufficient and the fact is that  we well i hesitate to use the word innocent with respect to that to the lack of records but we do not have the records the fact that we do not have the records does not want to magically preclude preclude us from being able to prove our case and that is essentially what the government is asserting because the government to use in this case are competent every single evidence that the government has relied on for various things for instance to threaten to levy penalties the w choose  competent admissible evidence of the payroll that we paid for that quarter that evidence is also supported by other evidence that we've coined it out now the government will assert why you should be able to rely on your corporate tax returns well as a general proposition that may be true in some cases but in this case we've established prima pasha that those tax returns a were prepared before any of these issues were ever known to us and that they because of all the different ways that they match up to the w three and the other documents prepared they they they clearly are correct in terms of what we're certain again we don't have the evidence we wish we would have you so obviously we wish we would if the court looks first at the w to use the w two is filed themselves or prima fascia evidence of the payroll we pay your honor we took discovering we investigated and we have not been able and the government has not been able to point to and we have not been able to find any single shred of anything that would suggest that those w two s are not a complete and accurate record of the wages we paid and the fact is that the other evidence supports that independently of those of you to use and so we are not taking one figure over another your honor we are taking the evidence and going where it leads the government wishes it led somewhere else but every time they try to go the and the eleven twenties which are the corporate tax returns which support all this in which again we're prepared before any of this came up all of the evidence points by better than a preponderance to what we're trying to prove your honor and none of  years your honor i did this analysis in his office with him several years ago but at least three years your honor and the other thing about that your honor with mr blumenthal's analysis is that how these way had these  monies been applied in a different quarter as mr blumenthal points out we have negative numbers for some quarters for wages paid another independent piece of evidence that supports our position please the court my name is carrie need to go and i represent government can you speak up please there was a discrepancy in this case energy felt it's nine forty one employment tax return reporting that i had fourteen million dollars in wages paid for the fourth quarter of thousand as you noted and at that time they claim that there were no records and so on what do they file the forty million dollars figure if they don't have any records and i don't know your honor i would think that their accountants would have these records it would sure that that didn't expect to have happened usually it's not to your benefit or higher wages that you paid because you will owe employment taxes on those however it may be that the amount of your w two and the amount of your employment tax returns don't match because you haven't properly been issuing your w to use that is a possibility and of course it's always possible although i can't point to any evidence in this case that it may simply not be to your advantage to present your records you may now for whatever reason want your records to be written and i don't want to say what i think is already stated by you you're merely stating possibilities you just don't know we don't know your honor but the point presented to show which of those possibilities actually occurred you're required to keep your records section sixty six thousand and one of the internal revenue code provides that you must keep records in this case tied to the date that you finally pay off your the amount tax so but it leaves six years and of course business is not only keep these records usually for purposes of taxes but as well for purposes of claimant pension purposes many different purposes if you they disappeared and i'd also like to point out the explain should offer this morning also does not convey that there were many mergers also is not contained in the record in this case there's nothing you also presented the declaration of mark roseman he indicated that because the w t was appeared to be right for other periods they must be right here the forms nine forty one appear to be right for other periods as well he also reasoned that reason that there was an exact match with the the statement of an irish examiner who indicated that she was not aware of any complaints but this isn't mean that there weren't any and also it doesn't mean that the temporary employees were not not just as happy not to report the income  the point is there's no way to tell because you know evidence was presented in this ca mr blumenfeld mr rosenberg essentially stated in their declaration that it was more likely than not that the lower drove you to travel that's really a decision for the court the court was fully entitled to look at their declarations and see what the evidence they base that on w have that burden  you i have a question for you the problem here is the number that's reported in the nine forty one form is that right yes sure ok we're on the record as a tell me who prepared the triggers that went into the nine forty one and how they were prepared  i don't believe the actual details of preparation are in the rakyat and that's kind of strange to me i mean it was seems to me that if you're if you're out to prove that your nine forty one is wrong that you have the people who prepared the nine forty one who came up with that figure you now say is over inflated come in and say here's how we made the mistake and there's nothing like that in the record is there there is nothing like that in the record all we have from your company is a statement under oath if this is the figure thirty two million and i you're trying to i'm under undercut it with no records and no testimony from anybody who explains how the thirty two million dollars figure was made was a mistake no testimony from anyone why it was i mean it's not pretty obvious you're claiming the thirty two million dollars figure was a mistake somebody made somebody in your company your company made right doesn't it seem pretty logical that you come forward with those people who come to the computer those numbers now that we look at it here's the mistake that we made certainly your honor and why isn't it there because i don't know who prepared to hear honor and i've never been able to determine who prepared of course i are there any signatures on the documents there there are signatures on the documents but they're not by the people who actually could see how you not only have no documents you can't even tell us who came up with the wrong figure well your honor i know that it was whoever was doing that the books for the company at the time was that was i don't know why don't i do because i've never been able to determine because there are no records exactly so that's your problem well your honor i that's where i disagree if i may because again if the eleven twenty is the corporate tax returns are prepared and have different figures than the nine forty ones that suggest there's a mistake in the one forty one's with the eleven twenty's match the three twos the government adjusting is not enough in this context more five nine sixty eight is now submitted for decision