twenty years and to the the partners actual income going forward for the twenty next twenty years and you object to the notion of using current rates and current and for both sets right yes your are so i get it with regards to the ready income starting with one year's income seems like a very narrow slice that is not indicative of future income potential what other measure would you have controllers and they did an analysis of the previous tax rate you know several years worth of tax returns and they aggregated they did what came up in surprise then evidence what they thought the rate would be that they would have to pay on that damages  here it's entirely possible companies do this all the time they have to make their planning five year plans to do tax planning and predicting what tax rates are going to be a plus apply in future years as part of that analysis based on the income that they bas burden as opposed to the speculation that that you're saying they need to figure out a tax is going to go up down is going to be richer or poorer as opposed to their assumption that we have rough gets in terms of what the expected income is going to be in year to year and year fifteen next saturday and so i guess what what concrete tangible things do you really think they should have done that they did not do here and i think it's going to be a much rougher guess when you're going out from your standpoint wanting of course but give me something concrete and tangible that if you were that you would have done that he actually did not he could have looked at the schedules of taxed through the individual partners tax returns that show the sources of other income and other tax planning strategies that they were currently employing if used to offset then existing pax's the lower t ax burden he could have spoken to the tax preparer he could have consulted with the individual partners about what their expectations were one of the partners like i want to get his name was married father had children was a used for the next twenty or thirty years and that was the number that documents on use going forward on all under the assumption that it's unknown she doesn't have her say unreasonable sense i mean if you look back a year he probably had a rejected hypothetically if they had looked at say the past five years and said our most recent return shows one hundred thousand dollars in income we have had one hundred thousand dollars in income for the last five years and we have the same job we anticipate keeping the same job then that would be or a liable assumption to say this last year is going to be the same for the next twenty years if that's what that evidence indicated yes but in this case it's even more complicated because you have the general partner you  multiple other properties of the home you know other sources of rental income plus other sources of investment and none of that was considered it was only the st page of the tax return and i do think that yes we we believe that was person reasonable to rely exclusively on that well you know i i've now got a new clients coming in the pipeline and they have brothers and sisters and i'm going to have even more clients after that i mean i guess you're you're asking them to do something that in its own way is a little speculative and so i guess what i'm wondering is is if someone had just gone through the exercise of taking these steps and then tr assign certain values that on a certain level are going to be a little bit arbitrary but are nevertheless a good faith attempt to assign certain values with that have been satisfactory because then at least from your vantage point you would have seen dr ben zygier going through what you would think is a more rigorous attempt at examining the question of what kinds of yes i think that would have gone far closer to satisfying the reasonable certain requirement that was going to burden than they did merely by assuming that all of the incomes and rates from two thousand and fifteen forward were going to remain flat that was based purely on the some trim that everything in the future was a no no one thing i thought the judge below relied on the big hook for sort of protecting the government against an overinflated grow support was the fact that one of the taxpayers of this partnership  you could see that that person salary was not going to be sustainable at the very relative high level it was currently at that one year that was looked at and at certain point it was definitely going to tail off and so for that reason that sort of protected the government from what ultimately would be an overinflated grows up a ward even if some of the other people's incomes for that  one year were likely to go up well yes because there are some some kind of a buffer to counteract any concerns about increased income for the other people well the court did make that  made too adjustments that being one of them however it resulted in an increase in the gross award is that the general partners and you did that one year that was relied on for the calculation i think its income w something like four hundred thousand dollars site or thereabouts and that was the projection going forward twenty years in the courts of no go back used the life actuary tables and see what is likely to retire they did sufficiently open ended that with all of the additional information that you said is necessary for the projection that the government's liability might increase rather than j yes that's correct you're out of the concern isn't that the methodology that needs to be imposed on the taxpayer on the prevailing party the consumer to prevailing party under liff and they need to go through th it in the a look at cases or in other cases where you're just looking at someone's one person's income and he's actually instructed just to assume that that person is expected likely to expect to be employed for five more years so he was doing his projections in those cases the majority of his cases he testified to on that basis that methodology vary but could both work in those instances here when you get to cases where this court has affirmed a tax gro up when start cases as well as this when you're dealing with complex partnership income with multiple sources of revenue and incomes more is required certainly more than an assumption that any future tax rate any future income is unknowable therefore we're not even going to try that simply guessing you might as well pick the number out of the hat and that does not satisfy the reasonable certainty standard not in a restatement nor under this court's decision imprecision pine which was you specifically said that yes work is not sufficient and so that's the reason that the trial court committed reversible error in this instance and it does it would result from the there's a concern that if this court was to affirm the trial court based on such a lack of supporting evidence for the damages award it could result potentially increased liability in other cases moving forward if we're going to reduce tax gross up to merely a math exercise and not have the sort of requirements that require the type of evidence and testimony competent testimony that was presented in the windstar decisions that it's it's it's going to lower the burden that future point of may have adjusted gross income without looking at any previous years or any kind of evidence about what that person might do in the future and say this person is going to have the same income for the next thirty years that's not economic reality for a lot of people yes your honor the reason that that process would not have been unreasonable is that in combination of looking at the four partners it was the most conservative estimate because the amount by which the highest grossing highest percentage partner he got overcharged more and his children could possibly have been under charge but the more fundamental aspect is that no because we don't have any evidence they're just picking one number snapshot for one year and saying this is going to be the same forever and you're saying well that's a rough you know dent and something that's just entirely speculative and unsupported and if you fall below that line then it's not good enough you're over the trial judge addressed let us let's talk about that specifically example of the attorney who had a three hundred thousand dollar gross income but a twelve thousand dollar adjusted gross income and that's all one thousand when he used as the income for the all thirty years right moral your honor that's my understanding right so there's two parts for that person's income i was going i was use right now what was used and what was used because the trial court the judge addressed this at the trial level and adopted the government's argument and said no there should be an apples to apples comparison so we should not be looking at the wage income for one side but not the other we should be looking at the real estate income for both sides to have an apples to apples not talking about the damage no more victims who did the damage to the expectancy damages i'm talking about the gross up are you saying that twelve thousand dollars was not the assumption that your expert relied on for this individual income wage income going forward in the final damages calculation incorporated into the judgment now there is an art wrapped it both the pro stuff and you show me where that that was done because that's not what the government says i that's what he said and the judge disagreed with him she said no that's not a correct way to do it i want you to go back and recalculate expert dr barry bonds i am still back redo it but we're working you show us and in the across the next twenty talent years and assume that that particular individual will with is the facts and law practice continue to make twelve thousand dollars a year for the next twenty years well i'm sorry let me try to it's it's near the top and i'm secure accordingly so the court directed dr benz i am to go back and recalculate taking out the wage income and only having the rental income the future rental income was a stablished by expert testimony which was really not contested by mr merriwell looking at future rates anticipated based on his market studies and comparatives in the area and both calculations in order to have an apples to apples comparison were breech calculated for that what's going to be the tax rate on that particular income the government received those calculations did not object to the calculation and those were the numbers that are incorporated into the final judgement so the answer is no that wage income is not the basis of this laser you're saying the center is near the top of a ninety six through to the individual partners well then how would that even be legally reasonable if you're admitting because the other not the wage income is directly relevant to the nurse taxation bracket and so clearly if somebody is making a one million dollars a year their tax rate is going to be higher than they are they're making twelve thousand dollars a year and so that individual wage income or non rental income whatever  berry did you point that out in your read brief that the government was the one who had requested it i believe i mean we're hearing an argument right now from you that i didn't read it please perhaps so i'm a little confused bracket it is not irrelevant to the partner's actual tax bracket overall if you look though at the damages and the st dollars that are received it effects you have an equal calculation there if you look at it as a whole and you say ok including in the wage income what do we look at then i would still contend that in fact dr ben xi'an had prior years to look at the twelve thousand five hundred dollars income for example it was not a wildly weird one year amount it had been in place that kind of very low income had been in place for the last several years he looked at the last four years of income because you had and what right is damaged what were the the economic circumstances and job experience of that person for those previous years that person had approximately three years ago begun a law practice and had testified that he had high start up costs so it was not expected to last forever he optimistically hoped to be making more income as an attorney then the net profit reporting two hundred and seventy five thousand dollars of expenses a year yes around it the expenses were high as well as the the income so there was not alternately d opined that it was reasonable and conservative to take the final year and to take the gross income from all sources and that was his opinion at trial he had to back up information and he decided it was a partner the same for this particular partner i'm going to look at his past three or four years and then i'm going to average those three or four year no plan nothing that is the only use a single data point he had all of the data for the past few years he used the most recent year and carried it forward at trial for all of the partners including the one who would probably retire and earn less and that was not entirely corrected by the very conservative assumption and think that that is so it's a conservative sanction of the state and the government's fabre doesn't mean that if the overall methodology is is correct it's there are some mistakes here there are some mistakes here if it's a mistaken methodology that we need to do a correct methodology and i do not believe it was a mistaken methodology your honor i believe how is it ever reasonable again let me ask you this if you take one single data point of salary for each of these individual relevant people and without any other evidence of whether they're going to have consistent salary or not say we're just going to assume that how is that ever reasonable without any notion that this person is going to have the same job is going to live in the same area and have the same kind of pay scale or things like that i get if you know this person is a g s twelve worker at a government agency they've been working at this job for twenty years they plan to work at it for another twenty years right they're going to have the same salary but you know minimal cost splitting and chris that makes sense but he didn't testify to any of that evidence he plucked out single data points and said well we're just going to assume this without any reason to assume that assumption is rational  kind of hard to draw a line with a single data point it's not so hard to draw a accurate and accurate methodology when you are looking at a true stretches decades and that problem predicting some of these income going forward twenty or thirty years is going to be speculative no matter what but there's a certain line of speculative that's ok busy ready and there's a certain line that's not relying on one single data point without any explanation of why that's correct trajectory or for the for the holder partner if you said well he's made he's had this income level he's probably going to maintain the same one b s going to retire and going to drop that one out that was done it with one single data plan how is that have some kind of reasonable degree ready of certainty here you have to look at each of these people individually because they're going to have differing incomes and their their tax consequences are going to be different yes your honor the you know you we probably wouldn't be here because the government probably wouldn't have appealed but he use one arbitrary data point and didn't explain why that was indicative of somebodies expected income for the next twenty years i guess i'm not to book versus sheraton for example that went out forty years based on a presumed income from a fellow who was in i think he was around twenty years old and it assume that he would get a job that he at that point only wished to have and would have a career and it took his income from that there are other cases for instance felder but that's the problem is it relied on other evidence rather than one arbitrary data point it relied ready on evidence that he might get this job he would have a career for the next forty years and his income from that job would be x m l that's not what he did here there was sacked if he did that and said this guy's a tax whatever he whatever kind of attorney was and said this guy's had a lot of start up costs and things like this so it's flat here it's probably going to go up a little bit i'm going to help for that you'd be ok but man i hope this guy's not going to earn twelve thousand dollars a year for the next thirty years as an attorney otherwise he's knocking be able to pay back his law school i mean it's just an unreasonable assumption to use that twelve thousand dollars number i believe that dr b