he ultimate issue before the court was whether or not the taxes that the i r s levied upon and collected from the south dakota department of transportation in two thousand and sev satisfied mr barr says obligations under a trust fund theory that is ultimately the issue be determined but short of that the relief requested in the complaint goes to the issue of whether or not mr barson what the trial court had case and i appreciate that this case doesn't have a lot of precedent out there it's a very unique in the issues it stems twelve some years of factual issues before the complaint in this case was which trust fund taxes the idea that an individual is liable for the failure to withhold payroll taxes of a company that lays out the procedure by which the i r s must follow in order for failing to pay the tax after being notified of an assessment a lien is imposed in favor of the government and or that person property by operation of section six thousand three hundred and twenty one that goes on to talk about the procedure where the i that notice of disallowed the complaint in this case makes clear that the taxpayer wrote to the i r s in the summer of two thousand and fifteen and indicated to the i r s that he objected to the personal to and the basis for the objection so when they are received should their notice of disallowance in december of fifteen what did they tell mr barr's about his right to appeal that letter is not in the record but it says you have two years to appeal it is false statute and that's exactly what i did in of two thousand and fifteen and in paragraph twenty one of our complaint that set out and we file a complaint within two years now could the complaints have been more crisp in the requests for relief sure that i think is always true but no disputing standard we certainly had submitted sufficient information to opposing counsel the government and the court indicating that the basis of our belief that the is brought in and its description of what relief is available now the typical case of course is a refund case and we had characterized our relief as misapplication going back to the idea that some seven years before or your client should have made a quarterly payment at that time so that's a good point and a good question ultimately the plaintiff in this case warned bars not c and w and as i indicated earlier it's really an issue of characterization ultimately and we are asking the court to declare that that the government was paid for the taxes that were owed but the relief relates to war and virus and the assessment which the government issued up upon him personally in the summer indicate in our complaint as i indicated maybe not as crisply as i would like in hindsight but clearly we allege that he objected to the assessment against him personally and then there was a notice of disallowed filed there after again what we're alleging mutely is that the tax was paid in two thousand and seven by virtue of the levy but that is an issue to be decided within the proceedings and when we have been contenders that we should have at been applied to satisfy what they are now assessing against mr could easily satisfy that one employee payroll quarterly paperwork requirement in order to have standing and have jurisdiction in order to have this case heard personally and so once he was notified that we're assessing you personally are saying hey wait a minute i already this has already been paid it should have been paid with the the levied funds and so that's where we get to the misapplication it's a factual issue as to what the government received and how it applied the funds from two thousand and seven but until there was a claim against mr barak personally it could have had standing to to challenge the levy or how it standard and i realize that it is a complicated exercise to try and understand but again the factual matter is that we believe the tax was paid  thousand and seventy or excuse me two thousand and seven and so then to now claim that mr barr is responsible he should have recourse there should be some recourse available to him to have somebody determine whether or not he this one when you're ready difference between the employer's employment tax liability with the individual trust fund liability when an employer pays wages through employee employer incurs an employment non trust fund portion that is paid from company fund and that concept of the employer's portion of the fica and the federal unemployment tax from and if the employer fails to turn account is the individual's trust fund recovery penalty and those are the same amount they were in parallel but we only collect it once so if we get money from any one source we credit it to both the camp was it was allocated to the company's liability but that's not entirely clear from the four corners of the complaint but that is a reasonable inference so turning to the complaint that we have here missed the bars doing individually he says he doesn't know individually but there was no allegation of one of the their own elements or jurisdiction in this record that which is the payments of the fish and amount had he made a quarterly payment when he received the notice of disallowance would that have then given him standing if he had he personally made it well well st of  well so and then what he could get back is just just payment right on the refund claim because everything else would still be time barred it would be time barred i think what mr barnes is asking the government i mean today he wants to do it he won't he can make a sufficient amount of the plea payment and then on the same day the next day follow refund claim right and that would be a timely because next day the two years have not run with respect to that payment so he can do that but not with not this lawsuit it doesn't work allocated that he has fully paid well the problem with that is that the spirit of tax we have to keep in mind is his individual liability of one hundred and eighty six thousand dollars so he is saying that we applied it to either the non try the non trust fund question but then the fortune that is that the rives individual liability is the trust fund portion so that is not paid any way well or he could be saying well we applied it to they wrong time period he's saying well the iras applied to a when hugh should have applied to quarter be and therefore he has a liability for quite a big well then the fact remains that part of being has not been paid and so you have to pay whatever you're disputing one hundred and eighty six thousand and four you can ask for a refund objection is nine years later far too late with respect to that discussion about the objection whether that qualified as an informal claim that is also not at issue here because the informal claim doctrine requires the informal claim in here sum up there was no allegation of a payment toward the individual trust fund recovery penalty and there's no allegation of a timely filing of a refund claim and therefore we asked the courts were from the district court's or hard so where's the recourse for the taxpayer here i've looked over the tax code extensively in the only conclusion that i could come to us that we must wait until the the court levies mr bush personally and then challenge positive if any of the issues before this court it just lays out the process that the i r s follows in a very technical complicated issue in a way that i don't think is clear by any other sort of thank