please the court good morning your honour's i am really robinson on behalf of charles troon at the district court committed to errors in this case and i will first start with the sentencing  convicted of making unsubscribing false and fraudulent i r s forms to the i r s and determining the tax loss the district court had two options in applying the united states sentencing g first option which the district court had and determining the loss which i will refer to as option a is the option in which this court held in united states versus black is the most appropriate option to use determin and that case held at the district court and looking at the guidelines should determine what the revenue was that was owed to the i r s but that was not received due to the defendant acts criminal conduct but of course that's exactly what two t v one point one c one gets that if the defense is improperly claiming a deduction then you figure  out the amount of the deduction and then you look at twenty eight percent which is the you know bracket i suppose that it's assumed to be applicable although there was a less favorable bracket that they might have used f about the tax laws than looking at this and his improperly claimed inductions were five hundred thousand dollars two hundred fifty apiece twenty eight percent of the five is one forty and that's the revenue the government didn't argument what was different life was this guy who owed some money and he kept writing bad checks to pay it and what the mistake the district court made there was just to add up all the that the bad checks as though each time the entire tax loss was being counted against him again and we said no you know that's not the right way to count you got to dig back and find out what was the tax laws but i really don't see how the  with that information the government had in its power to ascertain that the the things that would be used to determine the revenue that was owed to the i r s for example the government could certainly have a obtaining information from the i r s regarding mr true next income which that information is in the record it was stated in the pre sentence report so first of all you c income but the problem with mr patroon act is he's not really a reliable reporter and what we do know is that he does take these two deductions and we also know if and the judge points this out that he does it in a way that will actually give him a net operating carryover tax loss because he counts this big tax loss a little bit which might have been legitimate in the five hundred which  wasn't so this was a situation where it was actually uniquely difficult to know what the final dollar amount would be and that's what the guidelines say well in that case you can just do this across the board twenty eight percent of of the improper deductions could never know you know what if the government could never know what his tax income or tax liability might be for those future years thank you  true next opinion is more speculative than actually using the formula that requires the court to order that the government to prove the amount of revenue that was owed to the i r s in this case it would have been very it would not have been as difficult to ascertain the revenue that was owed to the i r s i don't see that at all if the deductions are in place and seems inconsistent with the commentary know which says that there are certain situations in income tax cases in which the tax laws may not be reasonably ascertainable in these situations it takes you right back to that that presumptive twenty eight percent of the deduction there are few other provisions that are comparable but that we're dealing with the deduction one i just don't see how he comes off any better if unless you ignore his improper deductions and there's no reason for us to do that that's the essence of th the black case i mean that the guidelines say that you use the twenty eight percent of the claim to duction when you don't have a more accurate way to determine the tax loss and that's exactly our point your honor is that we do have a more accurate reach to the term in the tax office if i may get back to my point all right go ahead thank you the in addition to having the income which which it's clear in the record the government next income the government also had information with regard to mr true next claim deductions whether they were improper or proper and that's when you take his income versus vaccines and you arrive at an amount where you have a tax loss and that's what we're urging this court to adopt that formula in this case because there is a clear way to ascertain the tax laws without using the twenty eight percent formula and again in support of this argument against the formula we would invite the court to consider this in a case where a person might illegally claim million dollars a million dollars deductions and would it be for fair to allow the government to then come in and say after the claim of a million dollars that twenty eight percent of a million dollars is the tax may please the court brian writes for the government this case is basically the reason the one point one seat presumption exists there's really no way to ascertain what the tax office would have been like to address the point that the government forth better information but there is no better information than the twenty eight percent presumption so is is the essence of the government's position the fact that once he files his tax returns claiming these losses planning perhaps to use them as you know in the carry forward sense for the next twenty years he's he's made enough of an effort to defraud the i r s that all of this comes into play yes so the million dollar hypothetical that ms robinson just gave would be the same if he was really planning on trying to use that million dollars as losses for the next twenty years steve in answer to that hypothetical would be twenty percent of that one million dollars would be the hundred loss business lost did that reflect all of the five hundred thousand induction and issue here and how much was supposed to carry over to future years i think his tax filing was income was only like twenty five hundred dollars so he would have used that amount some track of that from the five hundred thousand dollars in the five hundred thousand dollars would have applied going forward for the next one thousand years or however long until the exhaust that amount which i think leads right back into the point that it's on ascertainable what the tax loss would have been and that's why we use the presumption when you must have had some other losses because in the so i understand the two thousand and eight return he reports a loss of five hundred forty three thousand one hundred ninety one so he has other loss in the forty three thousand dollars was another ten ninety nine that he filed against a third party insurer so we think that's probably too we've narrowed the  harasses these other people yes so that's really i think the main reason why we narrow that at trial because if there was actual i mean of course the i r s is a victim as well but there are actual faces to put the harassment to but either  thank you thank you all right thank you robinson and wrap up thank you your honor i might respond to your honest question about how much of the losses would have carried over for the next twenty years i think the government's well i think that question leads to a more speculative answer than what the answer would be if we were to take the amount of revenue  versus what it's not received we're speculating more about twenty years down the road than we would if we were to take his income government council indicated that mr true next income during the tax year two thousand and eight was somewhere around twenty five thousand twenty five hundred dollars that is the thing is you can't in a year that you have losses that exceed your income you can't just ask the government to write you a check for all of that you can use the losses in the carryover format so they're not valueless they they have a future value which will only come about as you earn more cash more income offset the next year more income offset the next year so looking at just his two thousand and eight in come treats these these deductions as if they didn't exist actually i mean you have to take into account that future flow of their determine that the tax loss which would could have been determined in this case and governments council indicates that mr parcher knack at every opportunity to provide information to the court regarding the intent it lost the resubmit that it was the government's burden it was the government's burden of proof to to to to prove these charges therefore it was the government's burden to at least make a showing of what the loss would have been at at the revenue had at the ir see the revenue thank you actually are in time thank you very much and thank you for accepting the point in from the corporate appreciate your efforts those on the have your client