morning around this may please the court my name is frank i just you know and i represent the appellant kathy plats yes this is an appeal from the united states tax courts grant of summary judgment to the commissioner of internal revenue service in a collection to and so the so at at the collection due process hearing there were two real issues in dispute one did the government obtain verification from the secretary or did they verify that is the filing of the notice of balance the of fish and collection of the tax write the government has a right to the official collection tax with a legitimate concern of the person that collection action be no more intrusive than necessary so how do you bring this up so you file and what we filed is the request for collection to process appeal that's in a forty with respect to procedure you raise this issue regarding the form four hundred and eighty three it was referenced in the i c s history transcript that there was approval from a supervisor and then they the form to the courts and there's no issue there right now of course is an issue there because the one i mean we go back to the determination that determination was at with provided like what issues did we ra and the government essentially said that one the boilerplate said they complied with everything so they never addressed the four thousand one hundred and eighty three issue or any of the other issues so what the tax court does is review the determination of the appeals office so if it's not in the determination right there was nothing to reveal that the review officer had the i c s history transcript at the wasn't referred to the judge said let me see it right so what they have is an unsigned four thousand one hundred and eighty three and they then also but then they have a declaration from the  supervisor saying i approved it on a certain date but the i c s history transcript so there was no cross examination as to when the initial determination was made this is very factual issue i mean this court in a case called chad i said the determination has to be made at a time when it's meaningful right when you can argue against it not as a bargaining chip the date of the initial determination looking at the i c s history transcript that was later provided suggest that the initial determination could have been made much earlier than the november date so we would have wanted the facts in the spew we should have been able to cross examine the supervisor who provided the af in the c d p hearing or any point where the evidence was there economic hardship we proffered that they are unable to obtain ponting and that it was affecting the income of the business and that's how she makes her living so that was proffered through the paul tongue throughout the administrative part of the case before it went to the c d p and then it's also included in our submissions on the c d p so in the tax court we were not allowed to present any evidence or call any witnesses on the installment agreement of the company provide for the official collection of taxes by definition it did because the government accepted that installment agreement and then on with respect should any more money be  decided that no additional amount was needed from cappy plexus individually so they're satisfied that on the financial information she couldn't pay more than they were paying so but they did not go to the nd test and there's nothing to review your definition of question  turn never be able to go against the individual be they had some type of agreement with the company because by your definition of collection alternative if you have a deal with the company that's the alternative no what we were saying by our definition is they have to give the reasons for the balancing and then the court is allowed to review it on the abuse of discretion standard here if we look at the determination it said that we didn't raise a collection attorney by contrast if you read our submissions we did the failure to consider our request was the abuse of discretion there was nothing for the tax court to review so that's why we have a post hoc rationalization let's find a reason why this is reasonable and that's exactly what collection to process hearings were meant to avoid there is no our proposal was that if the company misses a payment then you snap on the leak but then the legitimate interest of the got government is served by taking the money monitoring it and if we miss a payment then put on the lien that would be the official collection of the taxes now on summary judgment taking the facts in the light most favorable to the nonmoving party the court should have denied summary judgment and then we would have put on the evidence of the the taxpayers why they believe it's a hardship and then the government could have it on their person on our analysis of their financials suggest that it wouldn't be a hardship but on summary judgment the court one took the facts in the light most favorable to the government to they put together a reason for sustaining the lean may it please the court i'm caring gregory for the commissioner of internal revenue he had ministry to record reviewed by the tax court supports the filing for that reason as we explained in the establish the priority of the treasury's claim against the competing creditors identified in that statute lets us provided no evidence to the appeals officer to support w lane her arguments presented to this court also provide no basis for withdrawing the us the lien notice has a basis in fact and therefore this court should do you have any questions for the commissioner just briefly to report that the the collection due process procedures are twin sure that all of the procedures and that so that's the procedural due process and the substantive due penalty was the initial determination approved that was not verified at the collection due process hearing and there were a fax in dispute as to whether that happened then too with the court rejected  november but then the i c s history transcripts suggest that the initial determination was made in july the initial determination that the signature has to be before the initial determination so this fax in dispute as to when the initial determination was made then the tax court said harmless error the failure to advise counsel once it becomes a collection action section six thousand three hundred and four dollars which embodies the right to representation says that the tax payers representative gets every one of is about procedure procedure on substance so that holding by itself is an error of law that how could you have a calmness error if congress put in the statute that the st thing the irises supposed to do is verify that all the procedural steps were done and they may think that not telling the lawyer is a harmless error but when you're dealing with taxpayers and time sensitive notices whether the taxpayer knows to send it to laura believes they're getting it to the lawyer even though we asked for it clearly in both the c d p hearing request and the supplement they were ignored in the determination and therefore they were not reviewed by the court so we have a basic problem with the determination how could the tax court review the facts that were not set forth or arguments that were not commented by the tax court the case should go back to fact finding should always be done by the agency the determination should be written in a way that there was something for the tax court to review because otherwise what happens is what happened here we had a post hoc rationalization