right our final case for today is goldberg against the united states mr hepplewhite going to say good morning or losing your audience or have a life you've had a busy mor please the court you have two issues in front of you one of them is the interpretation of subsection seventy four thirty three a the other is a pleading issue i'm going to start with the chatty tory interpretation because i believe that's the most important also my time will be limited of the government's assertion that subsection seventy four thirty three and a or pardon me the issue for you is whether or not that subsection says that a and an i r s staff member can be subject to suit in an individual capacity only if there is misconduct during the collection process or after all what the statute says if in connection with any collection of federal tax or right yes but the issue of if there are i think perhaps i didn't hear you correctly but i said to stay in connection with any collection of federal tax now doesn't mean think you can tell me if this is what you're thinking we wouldn't even have an internal revenue code period if we didn't want to collect tax dollars so if you're arguing that this statute without any other limitation allows people to sue officers who or employees of the internal revenue service that would be a very ambitious argument  perhaps the one you're making if you're saying that collection means collection and assessment and determination and all these other things the iris does then we need to talk about that and i didn't to do any things you think is just a generic it's like it's like the federal tort claims act except it's for the i r s you think this allows lawsuits against iras individuals for virtually anything that happens only in your collection matters begin the reason for that is the choice of the word in connection with what that means when to collection when what do you think marks the beginning of collection there  rules and regulations and statutes that talk about it the gospel according to helpful white is that once they determine the tax and says you are what you haven't paid it and we're going to go get it that we're going to go get it because the car is the collection process if in fact this statute were written as if in the course of any collection of any federal tax or if it was written if the collection of any federal tax then the services position would be correct the statute would be saying you are only so that staff members are only subject to suit when they are  n violating a collection provision that is not what the i r s his position is though it's if if in conjunction were in connection with the collection as opposed the assessment statement of the earlier stages the then the language broadens out that you have to have that link that relational link to collections that's the words in connection with right in this case is about the assessment of taxes not the collection that's correct but there was a bio i discovered it covers it because they have started the collection process so what do we make of the legislative drafting history in congress which is shows that the conference committee specifically addressed proposed language to suit to allow a claim for damages if in connection with the determination or collection of any federal tax or yaris misbehaved and the conference report compromised goaltimate only by removing the reference to determination as well as to removing for them for that for a while we are in the way the you have the reference to careless actions there are two matters first you don't get to that unless you find any ambiguity in the statute itself and i don't wish to say that there is an ambiguity now to the rest of dress your quit your question it says the the provision if the portion of it says an action under this provision may not be based on an alleged reckless or intentional disregard in connection with the determination of a tax it's not it's in connection with the collection of a tax but you also have to read what is also around that  conference report the conference report is inconsistent and it conflicts with the statute house the sense that precedes it says this provision is limited to reckless or intentional disregard in connection with a collection of attacks that's not what sec subsection seventy four thirty three a says incest shuffles it around it had the first clause is the in connection with collection clause and then a line you know after the  recklessly or intentionally or by negligence disregards language what's the difference if you say if i understand your point correctly then in my view you are reading out of the  definition of in connection with to go to the point that was raised about the conference agreement the conference agreement says negligence is not part of the statute in fact it is part of the it is in the house what it was amended in ninety the the point of the sentence that you raise is that it takes something out of the statute what it takes out is the issue that we have before us and that is what does in connection with mean you think that phrase is just so crystal clear we shouldn't even look at the conference report right that's my first point and the reason is that comparison between in connection with or with the other choices of words or could have been used in the course of whiling gauged in during that would be the crystal clear element and when you say in connection with it then you have to look at what in connection with means that you think in connection or this i understand your argument to be that everything that leads to the connect to the collection of attacks is in connection and so the assessment i mean europe your complaint is not about anything they did to collect this money your complaint is about a wrongful assessment and that's that is correct that does not strike me in any universe i'm familiar with with taxes as in connection with collection assessment a wholly different stage i disagree with your statement that in any universe of which are connected the universe with which i am referring is the universe of not only what does in connection with mean but several cases from this court in tax law it is a it is a connector is a different stage but to go to for example one of the cases that the cases that i cited on the civil side and i didn't cite others because there was no sense in but arguably under your interpretation there is no connection with soliciting a contract for the sale of commodity futures and the actual sales of the commodity if you have to follow is its own universe as you well kno saying is that the collection of attacks requires a connection to an assessment of the tax that's right and so you're trying to in a way that the legislative history the judge hamilton's born into it's really in conflict with what you're saying you're trying to expand the word collection to mean everything that leads up to collection as well as the collection process maybe they garnish wages maybe they take your house maybe they seize your bank account you know they collect the money however they collect it but that's the narrow meaning of collection the i don't agree that there is that's the narrow meaning of in connection i don't agree that connection is that narrow but i do agree that that is the argument that i'm making that the matters that are in connection prior to pleading issue you quoted in several places in your brief pages fourteen and fifteen i believe from the u s sex role press or against a case should be several of those quotations were from the dissenting opinion which i happen to like because i wrote it judge ripple wrote the crude and in for the majority but i was troubled that there was no indication that you were quoting the dissent frankly it was wholly  good afternoon francesco going for the united states this case is about the taxpayers long running attempt to get out of a settlement agreement that it entered into with the i r s in two thousand and three regarding its one thousand nine hundred four tax liability the district court after giving the taxpayer's numerous opportunities to amend their complaint dismissed the complaint with prejudice for two reasons one of the claims was time barred and procedurally improper and the other claim the seventy four thirty three claim that my opposing counsel was just discussing is not simply doesn't supply a cause of and here the plain language of the statute applies only to wrongful actions taken by the i r s in connection with collection of a tax judge would as you correctly pointed out there is a distinct difference in the tax law between assessment and collection and the tax payers argument here is that the i r s acted improperly in soliciting extensions of limitations period which then allowed it to make a proper assessment that is a squared challenge to assessment that is not covered by the plain language of the statute as it otherwise would have been barred by the limitation period personal had been you know free of the tax liability for that year correct had had no one extended limitations clary and that's right that's why it's an assessment related thing because you can't collect something you have incest yet correct correct and the taxpayers presumably knew they were presented with settlement agreements in two thousand and three well after the limitations period would have expired in the absence of those extensions presumably they knew that somebody connected to the partnership the tax matters partner had extended the limitations period in the taxpayer's brief they've discussed a lot about the plain language of the statute and quibbling with the legislative history however i've seen no response to our citation on page twenty seven  now on the other point which he did not mention i don't think they seem to be relying on the the informal clane doctrine to address the alleged failure to  exhaust the refund claim correct the it under the informal claim doctrine the taxpayer must timely file some sort of informal claim some written document that provides the i r s with notice of their claim and sufficient detail to invest the key investigate the claim before the limitations period expires so why isn't it enough in a complaint to say we did that given that we even in the post ball world we don't require fact pleading we don't require them to attach you know everything they ever said or submitted why it wasn't enough to say we we informally made this claim well because that's not enough to meet the informal claim doctrine the taxpayer also and  i just we dispute that the pleadings in the complaint were sufficient even on that first prong because their complaint was essentially conclusory their complaints that the i r s was aware from writings and other documents that we were making this claim that's a conclus but even even accepting that they had laid out enough to to establish the timely filing of something informal the informal claim doctrine also requires taxpayers to perfect their claim after the informal claim by filing a proper formal claim with the i r s they can see that they have not done this they don't allege in their complaint they conceded in their response to the government's motion to dismiss that they've never done it and actually what they said to the district court was just record if you want us to do it we can do it so they have not met this essential second element of the informal claim doctrine i'd assume it's at this point far too late to try to correct  case i'd like to do at another time i'm not here for that second the three cases that she cited did not discuss the meaning of in connection with and in connection with is the difference between collection and assessment but in the english language in connection with it has a broad meaning finally the legislative history says that the committee report decided that they did not want to make liability contingent soley upon reckless or intentional misconduct in connection with the determine if it dates of attacks what they said was you have to attach to that