[00:00:01] Speaker 01: Good morning. [00:00:02] Speaker 01: My name is Evan Davis. [00:00:04] Speaker 01: I represent Mr. Moses Lubitzky, who is at council table. [00:00:08] Speaker 01: His wife couldn't make it today. [00:00:10] Speaker 01: I would like to reserve two minutes, if possible, for rebuttal. [00:00:15] Speaker 01: Thank you. [00:00:16] Speaker 01: The court's faced with two issues. [00:00:19] Speaker 01: The first is did the Lubitskis meet the low bar necessary to show sufficient notice for an informal claim when they later perfected that claim with a formal refund, a formal return. [00:00:32] Speaker 01: And the second question was the district court correct in that the look back period is three and a half years, not two years as the government suggests. [00:00:42] Speaker 01: Regarding the first issue. [00:00:44] Speaker 04: Could you address that second issue first, whether the three, three and a half year period applies or the two year period applies? [00:00:50] Speaker 01: Certainly, your honor. [00:00:52] Speaker 01: Our view is that the plain language of section 6511, if you just start with 6511A, [00:01:00] Speaker 01: It asks a binary question, was the return filed, yes or no? [00:01:05] Speaker 01: And Omohundro makes clear it doesn't matter when the return is filed. [00:01:10] Speaker 01: Once that box is checked, you move to 6511. [00:01:15] Speaker 04: Before you get to 6511B for 6511A, are you relying on the formal claim, which was filed in I think January 2016, or are you relying on the informal notice claim that was probably sometime in 2015? [00:01:29] Speaker 01: We're relying on the fact that a return was filed, which was considered the formal claim. [00:01:35] Speaker 01: So that's January of 2016. [00:01:39] Speaker 01: OK. [00:01:40] Speaker 04: Thank you. [00:01:41] Speaker 01: But as noted in a number of cases, including Dixon, which the government cites, as well as American Radiator and Memphis Cot in the Supreme Court case, the informal claim and the formal claim are inextricably intertwined. [00:02:04] Speaker 01: Basically, the informal claim [00:02:08] Speaker 01: The formal claim relates back to the informal claim. [00:02:12] Speaker 03: If the return is filed in January of 2016, then you would say you have a three and a half year look back from that date? [00:02:23] Speaker 01: No. [00:02:27] Speaker 01: The look back is in 6511B. [00:02:31] Speaker 01: 6511B talks about the claim. [00:02:35] Speaker 01: You look back from the claim. [00:02:37] Speaker 01: The cases, a variety of cases that we've cited, including Kales, is talking about the claim including both the informal claim and the later formal claim. [00:02:49] Speaker 03: This is, I think, where the hinge is in this argument because it seems that what you want to say is [00:02:57] Speaker 03: We're working for when the statute of limitations begins to run, we're working off the formal claim, the one that was made in January 20th, 2016. [00:03:05] Speaker 03: Is that right? [00:03:06] Speaker 01: Which statute of limitations are you talking about? [00:03:09] Speaker 03: The three year. [00:03:12] Speaker 03: It was satisfied on day one, basically, because the claim was made at the same time. [00:03:17] Speaker 01: Right. [00:03:17] Speaker 01: So it asks the question of [00:03:22] Speaker 01: The specific language in 6511A is that the period for filing a claim for refund is within three years from the time the return was filed. [00:03:41] Speaker 01: So the return itself was a combination [00:03:44] Speaker 01: return and claim for refund as was the informal claim. [00:03:48] Speaker 01: It's all bound up together. [00:03:50] Speaker 01: And the three cases I mentioned earlier make that clear that Memphis Cotton in particular talks about how they are singular. [00:04:01] Speaker 01: They cannot be divided. [00:04:02] Speaker 01: The Supreme Court has spoken on that. [00:04:05] Speaker 01: So the government's argument is basically [00:04:08] Speaker 01: You have to divide the two, the informal and the formal claim for purposes of 6511. [00:04:16] Speaker 01: And I think Memphis Cotton says you can't do that. [00:04:19] Speaker 01: Dixon says it's a relation back, citing Memphis Cotton. [00:04:24] Speaker 01: So our position is you just ask the question, was a return filed? [00:04:31] Speaker 01: Was the claim, which was part of the return, [00:04:34] Speaker 01: uh... was that filed basically and the the informal portion of the claim in essence is the anchor for purposes of sixty five eleven b through the relation back so following your interpretation of the statute what kind of situation would apply to the two-year limitation period well if no return is ever filed [00:05:03] Speaker 02: and omohundro be corrected at any time later and you would then dissolve the two-year stat limitations period entirely well omohundro talks about how in essence it looks like the the two-year [00:05:19] Speaker 01: versus three-year period could be, I forget the exact word, but basically it may not have a lot of teeth, but it relies on the fact that there is a three- or three-and-a-half-year look-back period, and that's what preserves the staleness concern. [00:05:35] Speaker 01: I mean, that underlies the whole principle of [00:05:39] Speaker 01: Why the informal claim exists and why there are standards for the informal claim? [00:05:44] Speaker 03: But what is what is satisfying in your view? [00:05:46] Speaker 03: What is satisfying? [00:05:47] Speaker 03: The statute of limitations under a in this case. [00:05:51] Speaker 03: Is it the filing of the formal claim? [00:05:53] Speaker 03: After the return is filed or essentially simultaneously with the return [00:06:00] Speaker 01: Which portion of the statute is the court addressing in terms of the timing? [00:06:05] Speaker 03: I'm talking about the three-year period, right, which talks about a claim for credit or refund and goes on to then say it runs from three years from the time the return was filed. [00:06:16] Speaker 03: So you have three years from the time the return was filed. [00:06:19] Speaker 03: The return was filed in January 20, 2016. [00:06:23] Speaker 03: So what act [00:06:26] Speaker 03: after January 2016 constituted the filing of the claim. [00:06:32] Speaker 01: So the claim is in the return. [00:06:35] Speaker 01: The return on its face says he's entitled or the Lubitskis are entitled to the money back. [00:06:42] Speaker 01: As indicated, it is asking the question, did you file a return? [00:06:47] Speaker 01: Alejandro says it doesn't matter when it's filed. [00:06:50] Speaker 01: You get the three-year period. [00:06:53] Speaker 01: The return itself is the thing that asked for money back, but they had already asked for money back starting in, earlier in 2015, which was the informal claim. [00:07:05] Speaker 01: The informal-informal merge, as said, as I mentioned in the three cases, for those purposes, it's all part of the same thing. [00:07:14] Speaker 01: So the cases repeatedly say that, in essence, the informal claim is an anchor. [00:07:21] Speaker 01: whatever happens after that is merged into for purposes of evaluating the informal claim is merged into the informal claim. [00:07:37] Speaker 01: So I have about two and a half minutes left. [00:07:39] Speaker 01: I'm happy to answer all the court's questions. [00:07:42] Speaker 04: I don't know if I understood your answer to Judge Tonheim's question of when would the two-year look-back period apply? [00:07:50] Speaker 04: I mean, you said it could be when [00:07:52] Speaker 04: They don't file any tax return. [00:07:55] Speaker 04: But if you look at 6511B, it doesn't use that language. [00:07:58] Speaker 04: It says that the claim was not filed within such three-year period. [00:08:02] Speaker 04: So it contemplates something being filed later. [00:08:04] Speaker 04: So maybe your answer, I just didn't catch it or fully understand that. [00:08:12] Speaker 01: So the claim filing limitation in 6511A, keeping aside the look-back period, which also could be two or three years and therefore is [00:08:22] Speaker 01: It could be confusing. [00:08:25] Speaker 01: So the two-year period could apply either two years from the time the tax was paid, even if the return was filed, if that is a later period. [00:08:38] Speaker 01: So for example, if a tax return is filed and then there is a later payment on it, and that ends up being later than the three-year expiration, [00:08:51] Speaker 01: that's when that two-year period would apply. [00:08:53] Speaker 01: Or alternatively, a two-year period applies if no return was ever filed. [00:08:59] Speaker 01: And Omohundro says it doesn't matter when the return is filed, it's the act of filing the return that gets you the three years. [00:09:07] Speaker 02: so that seems to me that you're arguing for what technically in this case would be a seven-year step limitations period because for six years depending on where it starts because the the tax was paid in two thousand twelve i believe and then uh... if this that claim was filed in two thousand sixteen and then you have three years more after that [00:09:34] Speaker 02: to claim the refund. [00:09:37] Speaker 02: Isn't that a six or seven year statute of limitations? [00:09:41] Speaker 01: So the two statute of limitations are the first one is about was the claim, excuse me, yes, was the claim filed within either the two or three year period. [00:09:54] Speaker 01: That is the informal claim [00:09:56] Speaker 01: but there was a return which gets you the three years. [00:10:02] Speaker 01: So that's three years for filing. [00:10:05] Speaker 01: The return itself was a claim for refund as we indicated, but there was also an informal claim for refund. [00:10:12] Speaker 01: So that gets you, in theory, if you file a return six years later, et cetera, Omohundro says, [00:10:20] Speaker 01: you have three years from the time of the return. [00:10:23] Speaker 01: I understand that concern. [00:10:25] Speaker 01: But the saving issue in terms of actually getting any money back is was there a claim of some type, an informal or informal claim within the three-year period given that a return was filed. [00:10:40] Speaker 01: So there's no seven-year concern. [00:10:42] Speaker 01: There are a bunch of [00:10:45] Speaker 01: cases as well that point out that there are limitations. [00:10:48] Speaker 01: If the audit is done, if you file in tax court, if you file in district court, if it's disallowed, if the claim is disallowed, all of those things stop the clock running. [00:11:01] Speaker 01: But if they don't, if you have a timely informal claim measured by the fact of did you file a return before any of those other events happened, tax [00:11:12] Speaker 01: rejection, end of the audit, et cetera. [00:11:15] Speaker 01: The fact of that filing gives you three years just based on the plain language of the statute. [00:11:21] Speaker 03: What is the date where you think, what is the starting point for the look back under the three and a half year look back in your view? [00:11:29] Speaker 03: Because I take it it's not going to be January 20th, 2016 because if you look back, there was no tax paid within that three and a half year period. [00:11:37] Speaker 03: So you want that date to be earlier. [00:11:39] Speaker 01: I want it to be the date of the informal claim. [00:11:41] Speaker 03: Okay. [00:11:41] Speaker 03: So what date is that? [00:11:42] Speaker 01: I believe the last contact with the IRS would have been in September of 2015. [00:11:50] Speaker 01: I don't think that there's any evidence past September of 2015, which was in three and a half years because of the extension of the date. [00:12:01] Speaker 01: So it's not three, it's three and a half year. [00:12:03] Speaker 03: Has any case dealt with this puzzle that we're dealing with here? [00:12:09] Speaker 01: Not directly. [00:12:10] Speaker 01: I mean, both sides are arguing. [00:12:11] Speaker 03: How about indirectly? [00:12:14] Speaker 01: Well, Omohundro talks about the first issue of it doesn't matter when you file the return. [00:12:24] Speaker 01: You have three years from that point to make a claim. [00:12:28] Speaker 01: So that's helpful, but it doesn't directly answer the question. [00:12:33] Speaker 01: And then the other cases that talk about how you [00:12:36] Speaker 01: in essence, relate back that you merge them in the same way that an amended complaint merges into the original complaint was the analogy in Dixon. [00:12:48] Speaker 01: Those would suggest that it's all of a piece and the anchor period is when the informal claim was filed because otherwise you're sort of blowing up the concept of an informal claim if you start slicing and dicing it. [00:13:03] Speaker 01: The idea is it happened [00:13:06] Speaker 01: And then events after, including filing the return, but also could be providing other evidence to the IRS, all of that comes into and relates back to the original return. [00:13:19] Speaker 01: And Miller would suggest, I know the parties disagree on this, but Miller, that was overruled by Omohundro, talked about, let's measure the date as of two years. [00:13:30] Speaker 01: Was a return filed as of two years? [00:13:33] Speaker 01: If not, you're out of luck. [00:13:34] Speaker 01: You don't get the three-year period. [00:13:36] Speaker 01: So if you add the fact that Miller tried something similar but not identical, it was overruled. [00:13:43] Speaker 01: Yes, your honor. [00:13:44] Speaker 04: So you're trying to use for 6511A, you're using the January 2016 date. [00:13:50] Speaker 04: But for 6511B, you're using the September 2015 informal date. [00:13:56] Speaker 01: We agreed that that was the date of the filing of the return. [00:14:00] Speaker 01: We're not agreeing that the date even matters. [00:14:05] Speaker 01: Omo-Hundra says that the date doesn't matter in terms of the fact that you file a return is the important thing. [00:14:12] Speaker 01: That's what I take at least. [00:14:13] Speaker 04: But that didn't address 6511B look back. [00:14:16] Speaker 01: Correct. [00:14:16] Speaker 01: It was just 6511A. [00:14:18] Speaker 01: And one of the cases, I wish I could call it up in my memory, talked about how [00:14:25] Speaker 01: the statute is not a model of clarity. [00:14:27] Speaker 01: It's basically difficult to interpret and understand. [00:14:32] Speaker 01: But our view is if you just start with 6511A, you check the box, you say it says basically in 6511B, if you satisfied 6511A, then [00:14:48] Speaker 01: It's a three and a half year look back period with an extension. [00:14:52] Speaker 01: So our view is it's just plain language. [00:14:55] Speaker 01: I recognize the government's argument that, well, you need to determine it based on the date of the informal return. [00:15:03] Speaker 01: I understand that. [00:15:04] Speaker 01: I don't think any case has said anything like that. [00:15:07] Speaker 04: Great. [00:15:07] Speaker 04: Thank you. [00:15:07] Speaker 04: I know we took you over time, so you can get two minutes for a bottle. [00:15:10] Speaker 01: Thank you, Your Honor. [00:15:27] Speaker 00: Section 6511A does not set a statute of limitations of two years unless and until a return is filed. [00:15:40] Speaker 00: It says that a claim shall be filed either within three years of a return, or if no return was filed by the taxpayer [00:15:48] Speaker 00: within two years from the time the tax was paid. [00:15:51] Speaker 00: You have to measure that starting from the time the tax was paid, regardless of when the return was ultimately filed. [00:15:57] Speaker 00: Omohundro stands for the proposition that an untimely filed return can still state a timely claim for a refund on its face. [00:16:06] Speaker 00: And then that claim is governed by the three-year period of limitations going forward. [00:16:11] Speaker 00: And that's an important context to keep in mind. [00:16:13] Speaker 00: The statute of limitations runs [00:16:15] Speaker 00: starting from the claim. [00:16:17] Speaker 00: The look back period has to reach back from the claim. [00:16:23] Speaker 00: and is how your recovery is calved. [00:16:26] Speaker 00: So what happened here was that there was no return filed as the Supreme Court understands no return filed in the Lundy case, which I believe responds to your question earlier of the case that looked into the meanings of these, let's be honest, not model of clarity provisions. [00:16:46] Speaker 00: Lundy said where a return is not yet filed, that is the equivalent of where no return is filed under this statute, because you're looking at the moment when the claim is filed. [00:16:59] Speaker 00: Has a return been filed yet? [00:17:02] Speaker 00: And if it hasn't been filed yet, it has not been filed, within the meaning of 6511. [00:17:07] Speaker 00: Here, there was no return filed, and there was no claim filed until January of 2016. [00:17:16] Speaker 00: As Your Honor has noted, that return on its face stated a claim to recover an overpayment of tax, that under Omohundro was a timely filed refund claim with respect to the January 20th return. [00:17:30] Speaker 00: So that would comply with the three-year period running forward from January 16th, as Your Honor has noted. [00:17:37] Speaker 00: It could not recover the payment of tax at issue here, which was deemed made in April of 2012 because the three and a half year or the two year look back period either way measured from 2016. [00:17:50] Speaker 00: doesn't reach back that far. [00:17:51] Speaker 00: And that's why taxpayers are trying to construct an informal claim out of bits and pieces of ambiguous communications with the IRS over the course of several years, which we now, after trial, have factual findings that these communications did not amount to notice to the IRS sufficient to state an actual claim for refund. [00:18:13] Speaker 02: Let's assume for a moment that the informal claim, what is acceptable as a claim made sometime in 2015, what happens then? [00:18:24] Speaker 02: Don't we still have the two-year look-back problem that they have to deal with? [00:18:30] Speaker 02: They say it's three and a half years, but isn't it two years? [00:18:34] Speaker 00: It is two years. [00:18:35] Speaker 00: That's correct, Your Honor. [00:18:36] Speaker 00: And under the two-year period, any informal claim that ripens in 2015 is nonetheless time barred. [00:18:43] Speaker 00: They must make the claim within two years of the payment of tax under 6511A. [00:18:47] Speaker 00: And the only communications with the IRS within that two-year period were two requests for an extension of a filing deadline. [00:18:56] Speaker 00: Those on their face stated conjectures of what taxpayers estimated credits and liabilities on their account might be. [00:19:04] Speaker 00: But those are not sworn statements. [00:19:06] Speaker 00: Those are not signed. [00:19:07] Speaker 00: The IRS did not take that data and interpret it in any way to give rise to a claim. [00:19:12] Speaker 00: They processed those forms automatically and said these are extension requests. [00:19:15] Speaker 00: We will give you the extension. [00:19:18] Speaker 00: And the district court so held that these were not claims in any fashion. [00:19:23] Speaker 00: And that's all there is within the two year period. [00:19:26] Speaker 00: So there is no formal, there is no claim formal or informal stated within the two year period which we submit governance. [00:19:33] Speaker 00: And the court can affirm on that basis. [00:19:35] Speaker 02: However, at trial- Can you manufacture a three and a half year limitations or look back period by filing a claim later? [00:19:44] Speaker 00: We submit you cannot restart or reopen a statute of limitations that will then reach all the way back to the date that the tax was paid. [00:19:54] Speaker 00: You can start a claim, a new claim, if you actually do amend a return, let's say. [00:20:01] Speaker 00: You've filed a return, your regular three-year period runs. [00:20:05] Speaker 00: You later learn you misreported something. [00:20:07] Speaker 00: you file an amended claim, you can then benefit from the extended look-back period because you did file a return to begin with, but you can only recover the tax paid within that look-back period. [00:20:19] Speaker 00: The moving finger rights and having writ, you can only get back what's within the kind of penumbra of when your claim is filed. [00:20:29] Speaker 04: The district court assumed that three-and-a-half-year period applied, and apparently government really didn't contest that. [00:20:37] Speaker 04: Respectfully, Your Honor, on summary judgment, we advanced the argument that the two-year period... It was in the statement of findings of fact, but it wasn't... I mean, if you have a jurisdictional issue, I think maybe it's ultimately, maybe it doesn't matter, but it wasn't raised by the government expressly. [00:20:53] Speaker 04: I mean, this type of stuff, you put it in a brief immediately. [00:20:55] Speaker 04: Why wasn't that raised? [00:20:57] Speaker 00: We raised it in our brief on summary judgment, and the court summarily rejected it. [00:21:06] Speaker 00: The argument was preserved at the summary judgment phase, but it was decided adversely to the government, and we proceeded to trial. [00:21:14] Speaker 04: So the district court, I think district court said all the parties agree that three and a half periods, you're saying district court was wrong in that. [00:21:19] Speaker 00: The district court made that statement, and we did not agree with it. [00:21:22] Speaker 00: But we could not have relitigated the legal issue decided adversely to us on summary judgment at trial. [00:21:30] Speaker 00: A denial of summary judgment is interlocutory. [00:21:33] Speaker 00: We could not have taken an interlocutory appeal from it. [00:21:35] Speaker 00: We went to trial instead. [00:21:36] Speaker 00: The right to contest that legal determination in here is here today, and we do so. [00:21:42] Speaker 00: We say the two-year period necessarily applied from the beginning. [00:21:47] Speaker 00: We did not concede otherwise. [00:21:49] Speaker 04: Can you now go to the notice issue? [00:21:51] Speaker 04: Why wasn't there sufficient notice to IRS in 2015? [00:21:55] Speaker 04: There are multiple correspondence between the Lubitzky's and IRS and their CPA says we want to use a 2011 tax credit and you have notes, internal notes from the IRS saying taxpayer wants to use 2011 tax credits. [00:22:09] Speaker 04: I mean, why isn't there enough notice? [00:22:11] Speaker 00: Respectfully, Your Honor, what we have are readouts of conversations. [00:22:15] Speaker 00: So IRS employees are writing down what they've been told. [00:22:18] Speaker 00: It's not their knowledge. [00:22:19] Speaker 00: It's what taxpayers are communicating to them. [00:22:23] Speaker 00: And the taxpayers did not. [00:22:24] Speaker 04: But isn't that notice? [00:22:25] Speaker 04: This isn't particularly a complex issue here. [00:22:28] Speaker 04: It's we want to use the overpayment we paid in 2011, move it forward. [00:22:32] Speaker 04: That's pretty straightforward. [00:22:33] Speaker 04: And it's been a notice. [00:22:34] Speaker 04: It's in the internal notes of the IRS file saying they understood it. [00:22:39] Speaker 00: It would be straightforward, Your Honor, if there had been an overpayment from 2011 of record that the IRS employees who took those notes could have looked at and seen. [00:22:48] Speaker 00: But you're starting from a premise that there was a floor from which you could measure an overpayment. [00:22:54] Speaker 00: had there been a return filed, had there been a determination of tax beforehand, then the IRS employees could have looked into 2011 as soon as that year was mentioned. [00:23:02] Speaker 00: And by the way, the correspondences in 2015 regarded tax year 2012. [00:23:07] Speaker 00: 2011 was mentioned only peripherally and never unambiguously as a source of funds not commingled in some way [00:23:16] Speaker 00: with 2012 overpayments in credits. [00:23:19] Speaker 00: The IRS was never certain which was which, how much, if any, actually came from 2011. [00:23:25] Speaker 00: Taxpayers speculated that some must. [00:23:28] Speaker 00: And at every point when they said, we think we have an overpayment from 2011, IRS said, please file a return, and we can make that determination. [00:23:35] Speaker 04: But doesn't that mean they have notice? [00:23:36] Speaker 04: They don't have to have enough to resolve it on the merits. [00:23:38] Speaker 04: I mean, the IRS would never accept the assertions of the taxpayer. [00:23:42] Speaker 04: But there are notes what the issue is, and again, this isn't a really complex issue. [00:23:47] Speaker 04: Maybe they'll figure it out later, but they've been put on notice what the issue is. [00:23:50] Speaker 04: And the informal claim doctrine is something about notice, if the government is aware that this is the argument they will advance later. [00:23:58] Speaker 00: Respectfully, Your Honor, the communications between taxpayers representative and the IRS in 2015 did not put the IRS on notice and the district court so held and explained in detail why each of those separate communications and even all of them taken in the aggregate did not meet the irreducible minimum elements of an informal claim. [00:24:18] Speaker 00: You did not have notice that taxpayers were seeking an overpayment of a 2011 tax communicated in any of their 2012 filings. [00:24:29] Speaker 00: At best, there was a speculation that there may have been, possibly, to be determined some overpayment of tax in 2011 that would influence the application of payments to liability in 2012. [00:24:44] Speaker 03: On your whole theory, I mean, this is [00:24:46] Speaker 03: this is all sort of irrelevant because your view is that this all comes too late after the two-year period so that's out and then for the three-year period essentially is not relevant either because that's triggered by the formal claim. [00:25:03] Speaker 00: I think that's a fair framing. [00:25:05] Speaker 00: The two-year period ran from the payment of tax, and we submit that there was no informal claim made during that time. [00:25:12] Speaker 00: If you are measuring a look-back period from the filing of the formal claim rather than the forward-running limitations period, then arguably had a claim been stated in 2015 to which that filing could relate back, [00:25:26] Speaker 00: then that would be potentially, I think that's the taxpayer's position. [00:25:30] Speaker 03: Okay, yeah, but let's follow up on that because I had thought your argument was that once the claim was, once a return was filed, all we're talking about at that point is the claim that's associated with the return. [00:25:43] Speaker 03: And it seems that you're agreeing that it could also include the informal claim at that point? [00:25:47] Speaker 00: On this record, it could not. [00:25:49] Speaker 03: But as a legal matter, could it? [00:25:51] Speaker 00: A good informal claim, as has been noted, collapses into the formal claim. [00:25:56] Speaker 00: But a good informal claim reaches a higher level than the factual showing here. [00:26:02] Speaker 00: It actually complies with the statutory directive that the claim be filed. [00:26:08] Speaker 03: Okay, but just to be clear here, if there had been a good informal claim in September 2015, let's just imagine that that happened. [00:26:16] Speaker 03: You disagree, but let's pretend it did. [00:26:19] Speaker 00: when does it how does the three-and-a-half year look back period run does it run from the date of the informal the earlier informal claim yes okay because then the filing of the later untimely formal claim is viewed as a curative to the deficiencies of the original filed in but deficient informal claim and here there was nothing that's a bit so to resolve this issue of [00:26:42] Speaker 03: of the three-year statute of limitations and the three and a half year look back, your position is we do need to decide whether what happened in 2015 was a sufficient informal claim? [00:26:51] Speaker 00: We do not suggest that, Your Honor. [00:26:53] Speaker 00: We suggest that under the two-year limitations period, nothing that happened in 2015 is relevant. [00:26:58] Speaker 03: I get that, but how about for the three-year? [00:27:02] Speaker 00: if this court finds that the three-year period started running as of... We return to the findings of the district court at trial, which is that there was nothing prior to January 2016 that could have triggered the look-back period or any forward-looking period of limitations. [00:27:25] Speaker 00: And this court can affirm on either basis. [00:27:27] Speaker 04: Great. [00:27:27] Speaker 04: Thank you very much. [00:27:27] Speaker 00: Thank you. [00:27:37] Speaker 01: So first, the court's factual findings that were just discussed, those are entitled to de novo review. [00:27:43] Speaker 01: That's not a factual finding that's applying the facts, applying a lot of the facts. [00:27:48] Speaker 01: The 4868, the basically extension for 2012 had the same number in that was in the 2012 tax return. [00:27:58] Speaker 01: So I know that the district court disagreed, but that could be a basis. [00:28:01] Speaker 01: I do want to talk about this two-year period. [00:28:03] Speaker 01: The argument I just heard is exactly what was rejected in Miller. [00:28:06] Speaker 01: The government keeps saying, let's look at two years if it wasn't filed by then, tough luck. [00:28:11] Speaker 01: That's exactly what was rejected, excuse me, in Omohundro when it overruled Miller. [00:28:16] Speaker 01: I would like to get back to the sufficiency of the evidence of informal claim. [00:28:23] Speaker 01: The district court below repeatedly cited cases that are not applicable here because they're waiver cases primarily. [00:28:32] Speaker 01: Angeles Milling is the perfect example that the court said, [00:28:35] Speaker 01: Uh, you need to have directed the, uh, the IRS's attention to it. [00:28:40] Speaker 01: Basically, you need to be able to determine the merits. [00:28:43] Speaker 01: That needs to, uh, so there are a whole bunch of quotes that the court says, in essence, the Lubitskis could not make meat, but the Lubitskis didn't even argue waiver. [00:28:54] Speaker 01: The second category is there are a bunch of cases where there was an informal claim never filed, never followed by a formal claim. [00:29:01] Speaker 01: Those cases are really not helpful either because the, [00:29:05] Speaker 01: as you see in Caffenburg and Kales, the fact of that later formal claim is critical to determining the validity and sufficiency of the informal claim. [00:29:17] Speaker 01: So, citing all these cases, including the final case that the court cited, the district court said that this is basically the perfect example, fit him to a T. It doesn't fit him to a T at all. [00:29:30] Speaker 01: The only cases that matter are cases like Caffenburg. [00:29:34] Speaker 01: in determining whether it was sufficient. [00:29:36] Speaker 01: And those cases, if you just compare what happened here to what happened in the cases that we've cited, we absolutely crossed the finish line. [00:29:46] Speaker 02: Thank you, Your Honor. [00:29:47] Speaker 02: One question, follow-up question. [00:29:48] Speaker 02: Did Umahundro really overrule that particular statement in Miller about the two-year period? [00:29:55] Speaker 02: I thought it just [00:29:57] Speaker 02: address the flawed reasoning of the Miller decision rather than upset the statement about the two-year statute of limitations when a claim is not, a return is not filed. [00:30:11] Speaker 01: My understanding of Omohundro is it said you do not stop the clock and make a determination at the two-year period. [00:30:19] Speaker 01: I believe that that's what they were saying Miller was wrong about. [00:30:24] Speaker 01: I don't know if there's a particular language that the court's looking at, but that's how I understand Omohundro examining Miller. [00:30:32] Speaker 04: Great. [00:30:32] Speaker 04: Thank you both for the helpful argument. [00:30:34] Speaker 04: The case has been submitted. [00:30:35] Speaker 01: Thank you, Your Honor.