we're always happy to hear from you may be here any other council is well made please acquired mr chief justice members of the court my name is gino defeat ok and i'm speaking on behalf of the intervening defendants in this case  the regional transportation authority the county of cook and the village of force view of paul burke's speak him behalf of the state defendants and specifically the department of revenue the very narrow issue in this case concerns whether or not the appellate court was correct in ruling in deciding that retailers i keep patient tax paid by heart need oil were properly paid in the village of forced view because that is the appellate court was dead wrong in so holding and it's wrong for three indeed pendant and significant reasons each of which in in and of itself would  do not permit the construction that the appellate court gave it that purchase order acceptance was the end all in the be all concerning this issue that it was a bright line single factor test which had to be employed no construction of the registrations could or should lead to that conclusion appellate court was wrong in construing this statute frankly it hardly addressed the statute in saying that a quote shifts order acceptance test was the sole test to be applied in this case and finally whether this court excepts the conclusion of the appellate court that purchase order acceptance test applied t b would still not prevail because of the sham doctor what is so terrible about the conclusion of the appellate court in this case is that it reached the conclusion that a single factor was all that had to be considered and that a multi day factor multi factor test was in a political what's worse is what they chose to involve the single factor test which is the purchase order acceptance test a test which is easily  as occurred in this case were hired me the minute you later did for the purpose of appropriate tax payments i've said that the construction of the appellate court relies upon the first sentence of of what is generally referred to as be won in the regulations as your honour's knows there are three sets of regulations relating to the three and there enabling statutes involving the counties that the municipal code and the regional transportation authority act the first sentence begins with a quick qualifying language without attempting to anticipate every kind of fact situation  clearly the regulations say that every situation could not be anticipated and then it says in general before it says that the the most important factor in the occupation of selling is the general acceptance of the purchase order it doesn't say that that is the sole factor it says it's but the most important well what it does state your honor in a want and in some of the regulations it's be one that and i am quoting from that section enough of the selling vittie must occur within the metropolitan region to just the metropolitan region misspoke of municipality or county depending on the the regulation statute to justify concluding that the seller is engaged in business within the metropolitan region or of the region with respect to that sale so that is is clearly a multi factor test based upon the occupation of selling based upon what the statute says which is the occupation of selling is what subject to the retailers occupation tax  circumstances in each case exactly what this court said seventy years ago in excel always exactly what your honor said that that the business of selling is a composite that supreme court decision quotes that extensively as we have done with each of the briefs we've we filed clearly a multi factor test is is is involved because this court has said so consistently for seventy years and and thereafter sought to to to take a part of the regulation which clearly has limiting language which says that it may be the most important factor but is not the factor and to conclude from that that that is the single factor the binding factor is most inappropriate and it's a misinterpretation of not only the statute but particularly the regulations which the appellate court focused that whole court didn't discuss the statute at all  justice carter mentioned that justice carter mentioned the excello case in the cam ed case and marshall and and how much or three cases which are extraordinarily  important within the context of this case this video does make a difference for the purposes where a seller is subject to test between it out of state seller doing business in illinois and illinois involve out of state sellers which this court is as decided have nothing to do with the commerce case it has everything to do with the interpretation of the retailers i q patient tax the here regarding regarding this statute there is where the test is follow the statutory test is very simple all persons all retailers engage in the business of selling changeable property at retail within the jurisdiction are subject to retailers occupation tax that's it and this court's holding in excel zero in subsequent cases in interpret ing that language to to mean exactly that the business of selling is the standard that the real test to be applied but to determine where the business of selling is being conducted the individual facts and at every given case must be considered that's a test not any single factor test the reality is that no one reviewing this  record could possibly say that any business was going and in in the village of mark the only thing that occurred there was this purchase order acceptance and we argue and i will argue that that was a sham but even if it were a sham the business of selling was not the term acceptance by the fact that it was sent in by fax machine to a place or is it that that's something well it's a great question your honor because in essence mark was nothing more than a fax reporting place and and it was just a psychiatrist said a mailbox hire me set it up in such a way to appear the contract acceptance purchase order acceptance  occurring there we all know that you know contracts consists of offers and acceptance that's what makes the kind track so the sham aspect of this is that this was done without any economic benefit whatsoever to the company none whatsoever it was done solely and strictly for the purpose of evading taxes the us supreme court has numerous times referred to the sham doctrine the second circuit in us courts of appeal designed to give the appearance of it and all of the selling it to be truly occurred in force of you nothing but this this acceptance of these contracts by a part time employee of a paint store who had who had no need to have any knowledge she testified to that any knowledge of the business of selling fuel oil who had no discretion whatsoever  there was no business of selling going on it at the mark whatsoever it was all happening in force due so even without the sham doctrine  did and by the way there was no real was she it was just that you know the employee of the paint store who happened to be the person who tended to do this that her acceptance bound good afternoon my name is burke's i'm a special system attorney general and i'm representing the state defendants brian hammer the director of the private revenue and i dan rutherford the illinois state treasurer i'm going to try not to cover the same ground mr de vito covered as we're both on the same side  but there might be some overlap i think in our presentations as mr de vito pointed out the question here presented is whether harvey has to pay retail occupation tax the jurisdiction where the business is located it's the jurisdiction w activities and the actual authority was elsewhere but that was the finding of the trial court was that the final the final event that made harvey pound sell it could mark that was acceptance on appeal we have to challenge the factual finding what we're challenging that was the application of is the one on which the appellate court area and because it's a question of law i would like to start with the statute and talk a little bit about the cases and about the regulation implementing the statute and those are the  core documents where we find the answer to that question where should the local tax tax be sourced so the statute is as mr de vito pointed out says those engaged in the business of selling that who has to pay those engaged in the business  selling in that local jurisdiction and probably i mean that statute they have made which has been the retailers occupation tax act since one nine hundred thirty three and that language has been construed by this court many times what does it mean to be engaged in the business of selling in one place and means the business is located there not that the sale occurs there if the business is located there that's what it means to be engaged in the business of selling automatic voting she says that very clearly i mean an automatic voting machines it was a new york corporation that was selling voting machines to the chicago board of elections and the department of revenue assessed them taxes on those sales to the chicago board of elections they had personality illinois they were selling the  machines were delivered obviously to chicago they had personnel who showed them how to set it up and use it they made a bid which was accepted by the by the city council to accepted the bids here in chicago and the department of revenue said you have to pay retailers occupation tax because your business engaged in the business of selling in illinois and the court this court said no you're not because we'll look at all your selling activities just like that like this court instructed in excello we're going to look at the business and the details of the business and how the business in cages and selling and we see that you know but there is there's more activities the fundamental activities billing and accounting are taking place in new york so the state of illinois cannot impose a retail's occupation tax on that s and it wasn't it wasn't a question of interstate commerce it was just a question of statutory construction that seller was not be gauged in the business of selling in illinois even though it made a bid which was accepted by the chicago city council right here in illinois even though it had person i don't know even though it delivered to illinois was not engaged in the business of selling here because the business was located elsewhere even though there were some activities here and that application of that of the statu a serial i mean it's consistent beginning with excello including automatic voting the first district applied that very analysis in a case called international stanley nine hundred seventy six where you had a knock on the way ask a corporation that page thirty eight in the record what it says this auditors here a quick reference guide for you to use when you're beginning your odds here's some issues that might arise we deal with them here in summary back but if you want to if you're going to assess somebody general rule that acceptance of purchase order is the most important single factor in the other manual says that but the other main office specifically says look it's not going to be dispositive every case if you have a complicated case look at the regulations look at the statutes use those so that that's how that's just a very reasonable way to educate and instruct auditors for fishes you say but it's not wrong it's not binding law and if you read the context it really does the appellate court give any difference to the department so it is up to us the men to decide the issue forget about what they said you know well i think that the court should defer to the department's position as to what its regulation means i think that if we've articulated a reasonable coherent summary guide to see the room to say the auditor's generally speaking acceptance of the of the order of the purchase order will will be the most important thing effect that's what the regs say and auditors as a general rule would be well served to follow that but it also says be sure to look at the regs for complicated cases and don't rely solely on it so does support our position here that this is a silly generous complicated case involving a taxpayer who is structured his business in a specific way to have you know to take advantage of the general rule and are are there i think wisely didn't rely on the general rule but instead examine scientists as my first point but my second point is the legal point which is to say we're engaged in that the noble review of what the regulations me and what the statute means and what the department's internal audit bureau says about that really can't change really can't affect if this court has as i pointed out in six seven cases in a row this  same legal standard to what what it means to be engaged in the application of selling our body bureau can't undermine that they can't change what the law is through an internal document so it has very  limited usefulness in this inquiry right here which is a question of what the law is and even if you were to look at it you would see i think you would see if you read it all of paragraphs and context it's page thirty three forty of the record that it does support our position that it's a case by case that specific analysis that's required so let me let me turn to the turn of the regulations that i think of talking about what the statute says in a little bit about what the cases have said interpret in that statute and they have said you do a spec specific inquiry look at all of the of the business selling activities and figure out where they're located based and as the international stand we said court said where the majority to of activities take place of the regulations do they really incorporate that standard and they provide a little additional guidance to taxpayers and this point i did want to refer back to a question that justice garment asked she said are there any other factors besides acceptance of purchase order that are listed in the in the in the regulation and mr de vito i think correctly answered that next section and see one there are not but in the one there are right so we see one of the regulations says sellers acceptance of order and it lists acceptance of purchase order is the most important single factor but then the very next action the one says here are some considerations that are not controlling and it lists several others right it says delivery of the property not necessary to have that in the jurisdiction but clearly must be relevant that retailers are being informed that they should look at some of which are more important than others that's the nature of guidance so what the regulations starts with in section b one is that is the statement of the general rule which is for the seller to incur the tax the sale must be made in the course of engaging in business and nothing of the selling activity must occur within the jurisdiction to justify that conclusion that the sellers engaged in the business that's standard essentially we know that there's a lot of selling activities involve we know it's back specific here are some factors you should think about when you're deciding where to source your sales you should think about where you accept purchase orders in general that will be the most important factor in general if you do that if you accept your purchase order in a specific place we will conclude that you are engaged in the business there in general but specifically we're not attempting to anticipate every kind of fact situation turn to be one and the two you should also consider when you deliver the property where does the technical sale take place and in the context of the excello and all of those other cases you should consider all of your selling activities to figure out where your business is locate so this provides guidance to taxpayers who want to determine where should they source their sales right how he wants to use it to determine how to get the lowest tax rate they want to take the guidance that is provided to good faith bona fide retailers and where they should do to source their sales based on where they're selling it to be a place and they want to take it and take it out of context and use it as a way to avoid taxes wasn't intended for that if read in context as a whole consistent with the case law is consistent with seventy years of case law and with the retailers occupation taxes they're all they can all be right coherently as articulating the same standard a retailer must pay retail education tax where it's located it's located where it's predominant in most important selling activities take place here are some factors that you should consider to make that determination including where you set your purchase orders where is delivery where does the sale takes place where is your business located where is billing take place these are all factors that may have may or may not be important depending how the specific retailers engage the business so the appellant it's one factor test it really isn't undermine a lot of the guidance that's provided there in favor of simplicity it's not consistent with the cases all of which have interpreted the phrase engaged in the business of selling to me a fact specific task starting with excello and moving on through i am convinced that those regulations are absolutely compelling and dispositive in this case and support party's position i just want to take a step back and address the general proposition of background proposition that's important there's nothing wrong with a business structuring its affairs to reduce the tax burden on its customers are needed that in this case it did it openly and in full view of the department it was watched by the department and the way it accounted for its tax treatment for years and years and years was ok by the department and then they also at this trial explained why they did that this is a very very very tight marginal price sensitive business were marketing fuel and fuel is a commodity customers go to the lowest sellers so they have to do everything they can within the bounds of the law within the bounds of the law to keep their prices low consider what happened this isn't just hartley's testimony a trial and see what happened in this case when the auditors announced that they were changing their minds about how hartley should be treated the party had a decision to make it's going to figure out what to do one decision and maybe we're going to fight that audit determination and here we are at the end of that long process hoping expecting to win but they face a lot of uncertainty at that time and what they do they packed up before you would miss rate of offices and move down the market because that was what they needed to do to sell fuel and they'd not hidden it and they've not been embarrassed about so let's answer the question whether what they did in the way they structured their business was allowed by the law and of the third district opinions taking i think a little bit of a beating for not discussing the statute i think that's a little harsh on them because it turns out when you look at the statute and you look at the cases interpret in the statute what you actually get is a question but the statute in those cases don't answer but the regulation does and i don't think there's anything wrong with their district ultimately focusing on the regulation because that's where you get the answer allow me to explain so with the statute all three  have the same key phrase you heard today engage in the business of selling well what counts as a gauge in the business of selling i'm not afraid of admitting that excello and automatic voting machines understand the business of selling to be the composite of many activities that's absolutely true and they say that in effect they say is the standard anough of the selling activities have to take place within a jurisdiction in order for it to qualify as engaged in the business of selling which raises the question how much is enough  excello doesn't answer that automatic voting machines doesn't answer that both of those cases just tell us what isn't going on what they told us is that if you just if you don't have a place of business in a jurisdiction you just have some sales agents w wandering around trying to drum up business with no power to bind the seller each of those cases lack they lack the power to buy the seller then you are not engaged in the business of selling there so it doesn't tell us what is enough you just tell us that one small sliver of selling activity that's the only thing you do and you lack the power to buy and then you're not selling and i think mr brooks misspoke about automatic voting machines he kept he referred to acceptance of automatic voting machines a having occurred in chicago that's not true and this is i'm reading from the end of the book the end of the opinion the illinois to be consisted only of promotional work delivery of business transfer of title deliberate machine servicing at the end of the paragraph there it was in new york that the bid was prepared terms were fixed contracts executed payments billings made in other words acceptance occurred in who work in automatic she's not in chicago if there is one case there's exactly one case one of their favorites the can make a case that actually discusses what counts is enough and i want to talk about what the facts of kemet were because i don't understand how they can embrace chemicals in light of the standard they ask you today to adopt cam it's a case of an ohio seller everything that they do is done in ohio they don't have any it's just like automatic voting machines they have some sales agents here they don't have a place of business back where those sales agents operetta operate out of it try to drum up business but all pricing contracts everything is accepted you know higher there is exactly one thing in illinois it's an inventory they had a warehouse even that one so activity in the occupation of selling that's enough to be deemed under the statute engaged in the business of selling so that leaves us with a fall after we've read through the statu we know that it can be won or any combination of a number of potential things it's a very low threshold and it raises the following question what happens when an illinois seller is engaged in the occupation of selling with respect so the lettering and numbering will be for you the county version begins with the definition of county which you can ignore because it's not an issue in this case and it starts with section b and section b near serous title near solicitation of orders not doing business this simply adopts into the regulation everything that we've learned already discussed this morning about the statute and the cases it echoes the language of the statute engaging in the retail business within the county that's the first section of b persons would be one second sentence enough of a selling activity must occur that's the standard for whether you can whether you're engaged in the business of selling a particular jurisdiction that we know from excello and automatic voting machines paragraph section subsection b to goes on to express the holdings of excello automatically machines what's not enough is if you don't if you mere solicitation in receipt of orders within a taxing jurisdiction situations and it's about to tell you which one it goes on as you heard to say that the place of purchase order acceptance is quote the most important single factor in the occupation of selling ok so that sounds like its most important surely is and not being gauged in the business of selling it as we'll see the legal commitments that they've made in this case require that they accept that conclusion as a matter of logic now i'm going to keep justice thomas i want to be clear about this we did not just have a fax machine we had a person down there we had space betting nativism our space in the office we had a dedicated fax line where she could receive orders she had to make an evaluation of whether the people who submitted those orders were credit worthy customers of the company and if they were not she rejected them she didn't just accept it didn't happen very often but it did happen she had the power to reject as well and she did  decision which the import of the poker decision curtly received i don't think you dispute that receive the benefits and services provided by cook county neither business you at least is primarily in cook county right well i want to be clear before i answer that i want to be clear about i'm not trying to catch you know no but i want to emphasize what i started with remember when i went back deal of the benefits of cook county but not that bad but not paying the taxes when they when it even started to look like we might suffer that have to pass on to its customers the burden of the taxes of cook county hardly laughed right so hard he's not trying to steal some kind of government services hermes trying to comply with just in a more general sense back to this bright line rule what would stop a number of cook county businesses were doing the exact same thing that heard me do here  place to fund important services that hurt you know there's are benefitting from it now i think opposing counsel will say all they have to do is set up a fax machine or have somebody put purchase orders in another county of people who are poor tax of the other county i think the concern that the sky is falling and the finances of the county are going to sort of suddenly evaporate it's way overblown in this case this regulation has been in place for decades and decades  ours that we cite and discuss that adopt this rule have been around for decades there may be some industries that this would be the morning this would be the first supreme court decision on this that's right and that might be a reason if if somebody were to sit down and look at this regulation say oh boy the world has changed business is more mobile than it used to be whatever whatever factors they want to consider and they think you know what this is this isn't going to work anymore and you change the regulation and you or if you change the statute you can do that but what you don't do is you don't take an audit against a company that's been absolutely clear and its practices have been blessed expressly by the department in office you pull the rug out from under it reach back in time and retroactively impose twenty some odd million dollars in tax so you don't do that so if there's a problem nobody this court is not today saying a law in illinois always be purchased or acceptance takes place in illinois that's where retailers occupation this court cannot do that because the general assembly can address its big you know notice and comment proceed and we can have a proper airing of the concerns and the balances that you raise in justice thomas we can incorporate the views not just of the taxidermist actions but of sellers not just in one industry but all industries of buyers all across the state and we can try and figure out what is a better tax will rather than groping around in litigation asking a court in a single case to adopt an anything goes view that the department can look at in hindsight and say  one looks like it's a little bit more is a little bit more going on here and a little bit less going on there i think that's a disaster for business and for giving people the opportunity to order their arrangements price their products and effectively compete but that's a policy  you can put it in the lap of the general simply or b or the department of revenue in a room making proceeding to figure out whether they can live with this but let's continue i don't want to overlook the sentence the next sentence and see one because it's the sentence that declares the rule we left off we want to know how important purchase order acceptance is we're told if a purchase order that is an acceptance of the seller's complete and unconditional offer to sell is what was supposed to follow from without attempting to anticipate every kind of fact situation was and something about purchase order acceptance being important but not necessarily dispositive you couldn't write the sentence you couldn't write they haven't said anything about they got up they spent a half an hour this morning talking about the regulation the fate was the regulation in your reading going on because i'm not going to i'm not going to be accused of that but the last sentence it actually concha way to the point because it in march and we had a long hard fought difficult trial trial judge made findings and those findings cannot be our challenge here anymore that's done acceptance took place in mark hart he was bound as soon as lawry cerezo or the other sales agent said party accept this offer now we think we're we think that the answer is the case and they accuse us of treating the regulation the rest of the regulations support list because we think you can stuff but that's wrong and let me explain think of it as like a road you're on the road you're a seller you're engaged in the business of selling in illinois you have to figure out what jurisdiction the rest of the road from get off at springfield the rest of the road goes on to st louis is supposed to us course there are lots of people going samples and in fact this road continues because some sellers might not accept purchase and remember cam and their favorite case that's a seller that didn't accept purchase orders in illinois the road goes on and the next paragraph of the regulations says if a purchase order is accepted outside the state but the the inventory that's the subject of the sale isn't the state then that places sales tax applies so this is another circumstance that we didn't anticipate they haven't anticipated everything but they didn't  well at this point we don't know what's going to happen if you don't accept purchase orders and you don't have inventory located in the state then it's a little bit more uncertain in other words they haven't attempted to anticipate every kind of fact situation just like i promised and there's like they told us that and they put the good loss are some things that sellers might think they could rely on and they're telling them don't be so sure and in some cases actually they're telling them they don't count  right that's exactly right and so and so that's that's the regulation we see that you know where the delivery of the property goes may or may not be another off ramp we learned for instance that where the property is or consumed is actually immaterial this isn't just telling us that other factors might matter it's actually telling us some factors that affirmatively don't try to give some guidance or trying to give some guidance to taxpayers to help them see  now you know as i said i think that's all you need to doubt the regulation in the statute are in harmony the statute in the cases leave question on the answer what about the seller that is engaged in the business of selling in more than one place and the regulation definitively answers that but they press on with their view when you heard it again this morning that in fact there's only one place where hardy was engaged in the business of selling in illinois because it wasn't engaged in the business of selling it all in market because all occupations remember in kemet the only activity it's too long was the location of the inventory sold to illinois purchasers that's it just that more they accept  agree and the regulation as i just explained is clear that is enough selling they also do not run from that first sentence of c one of the regulations where they say the single most important activity is purchase how can a less important activity standing alone be enough selling activity to qualify as enough activity to be engaged in the business of selling but the most important factor is not this isn't just this isn't just all there all the prior statements that they've run away from in their brief these are legal commitments they continue to me and accept in them and i think the weight of their own arguments causes the conclusion to collapse of course that's not all as i said there's a lot more that heart he had at its disposal the p l o cars that are listed in the book and in the brief many of them i know that they only apply are only controlling as to the sellers but that what we're talking about here is whether this statute so constrains the department that it cannot have adopted the regulation that means what this regulation says that purchase order acceptance is bit like clark where the only thing you learn about a sales acceptance offer office rather that is separate from administrative offices and other headquarters is that they accept purchase orders and one thousand nine hundred one p l r as a such an office the tiny town of adeline illinois two thousand one p l r has an office of a jet fuel subsidiary whose office is described not as anything other than accepting purchase orders separate from the headquarters and says the same thing time after time if this is this is the location where purchase orders are accepted that locations sales tax will apply the bridge audit and talked about that yet but that was an audit they say was about the motor fuel tax it's not exactly right it was about more than that but it was also about the retailers occupation and not only that they take the position in that case and explain the rationale of their position that purchase order acceptance determines where retailers occupation tax wise they said this and i'm reading now from p x seventeen is there memorandum of law to the administrative law judge during the audit there was also an existing body of regulations in case law that applied to the r o t had included in these rules in law is that the location of purchase order acceptance is used to determine the location of the r other local occupation taxes including the three taxes issue in this case county tax municipal tax and the r t eight and i'm emphasize the first part again existing body of regulations and his loss i didn't write that this is the standard that the fine for years for them to come in and say that what they've been doing telling taxpayers all this time telling local governments to this day is going to be just about telling their own authors as you heard this morning about how to do audits but all of that has been wrong something nobody should have relied on i think that's a remarkable statement and a little bit at a minimum should refuse red flags about the interpretation of a selling i want to speak briefly about the r t a's argument not embraced by the by the proper revenue that the transactions were a sham except this was a sham i think there's a reason why the department doesn't address it and doesn't accept it because as i said just broke we had a trial and we fought this out and this was real this acceptance was real and the sham cases bear no resemblance to this champions is involved complicated multiparty transactions through which you're sending you're sending you know real estate or something like that through a divorce to try and escape a preexisting tax liability that's not that's not the transfers of property this is a single transaction mean for purchase or acceptance legally determine to a trial to be nonetheless subject to challenge as not real it's it just doesn't make any sense this is a single transaction there's only one question  was that was dispositive here and it was decided ultimately i think i'm just going to conclude where i started your honour's business is need to be able to price their products to compete and they have the right to rely on the published statements and regulations tax officials when they can when they order their affairs they're not fixed forever they can be changed if there's a problem it can be addressed affairs and good faith make good faith efforts to compete well complying with the law that's due process that's fair for all those reasons your honor we respectfully request that you affirm the judgment or how can we both ask for deference for the department's view and at the same time disavow the audit manual and i think i didn't fully answer that question so let me let me the way to one more time which is to say that i believe the department's properly promulgated regulations interpreting a statute and its interpretation of those regulations is entitle to deference but that deference does not extend to every missive or every paper that the department puts out and there's a reason for that i mean the the documents that become properly complicated regulations go through a lot of review there's notice and comment there like statutes there interpret like statutes our audit manual i mean while there's obviously internal review and those documents those are not law they don't these sellers of voting machines to the chicago board of election but his position was that when the bid came in to the chicago board of elections and the board said yes we'll take it that was a contract right that was the department position and therefore that they were selling here and the court said about th argument we cannot say that the mere execution of a contract in this state is sufficient to class that the mere execution of the contract in this state is sufficient to classify the parties who gauge their in in the business or occupation of selling cancer or personal property at retail so our argument was rejected that the acceptance of the new order in illinois makes it in on myself now they later on in the opinion as mr hartman pointed out they said in any event there was still more negotiation that had to go on and the final final acceptance took place in new york so that's correct and i'm sorry if i left them the wrong impression but the one of the holdings of the case that i just quoted for you is that the mere acceptance of the contract in illinois is not sufficient if there are other so if the predominant in illinois all we do is hold inventory there all of our selling activities are in ohio look at selo you keep even more life and protests you need to look at the specifics of a business you need to look at that and the business of selling in ohio and the corps agreed they said ye under excello the occupational tax acts require a composite of many activities before local tax liability may be imposed and then the court went on to say that we think the holding of inventory in illinois and the delivery the driving  that inventory from the illinois where house to the illinois purchased or that is enough of a composite of activities with deference to the department's regulation there's a department regulation said that if you hold inventory in the  has imposed a single factor test and that's no invoice you have to strike the the regulation and the trial court to it and an appeal the appellate court said no it's consistent with excel you can't have just one factor you have to have multiple factors and we have it here that you could quibble about whether there are you know about whether that was rightly or wrongly decided but that was the court's reasoning was yes we agree you need multiple factors in order for the local tech sector be applied and even going to talk about the very provision that we're and curb the tax in that one place but it's still modified by the first sentence i mean it's all one paragraph in general this is the most important because it's the most important in general it will be it will be dispositive but it is not always despised what mr said is to modify it is to allow i mean if i understood sorry to correctly it's to allow retailers who don't accept purchase orders anywhere because under his argument if you accept in illinois that's where you pay if you check except out of illinois you pa nobody can cite them or relying on them for any purpose that's what the regulation says you cannot cite providing an appeal on it's outdated or g l for any purpose so i assume there's an exception and i can cite them in rebuttal to someone who's violated regulation and i'll point out that each one those is of course distinguishable the ninety one p l r had a full time employee in their separate down to age of a paint store that they actually represented to the department that there was significant administrative and personnel costs that were being saved not just tax avoidance so there's a you could go through mumbai want if you wanted to but you shouldn't because the people are still hypothetical there advisory opinion so they're only binding they're only relevant to the single tax payer finally the bridge audit and i know there are factual disputes and this is been briefed a lot so i just want to get it to talk about the legal consequences what if the department really did what mr  the statute and determines what the law is the conclusion of that is either the author this time was right or the auditor last time was right that's all of me right because the real answer comes from the regulations in the statutes and you can't defer to an audit that took place in ninety shot it and seeing how it's consistent with this audit and that's why there's well established rules against the stopping the department or stopping the state from properly collecting revenues based on prior audits or prior representations thank you then you