Electrolux Holdings against the United States. Mr. Freeman, whenever you're ready. Thank you, Your Highness. Please report. I'm Steve Friedman here with my co-counsel, Chair Paris, representing the plaintiffs and talents. Electrolux Holdings Inc. and Electrolux Phone Products Inc. In December 1999, Electrolux filed a timely refund of claim based on the clear and unambiguous language of 65-11-D2A, a special limitation to parents of a疑ative tax care. That's 1999-Findman, related to a carryover for 1995, which was based on a capital loss in 1994, which had first come carried back, pursuant to 12-12 on the step of the code to 1991-192-93. Electrolux originally filed its 1994 return. It had a large, a capital loss. However, at the time, it believed it only took a portion of that loss under what was then called the loss disallowed school. Accordingly, it offset some of that loss against this 1994 return. It pursuant to statutory mechanism in Section 12-12. It was also allowed to carry back the remaining portion of the loss that was not used in the 1994 tax year. First, to 1991, three years received
. It had some capital gain in 1991, at which it offset against that loss. It was then, after going to 1991, entitled to carry back the remaining portion of the loss to 1992, it had no gain in 1992 offset. Accordingly, it was in time to carry back the remaining portion of the loss to 1993. It had some capital gain in 1993, actually had enough at the time to use the remaining portion of the loss. The 1994 tax year was then audited by the government. Under that limit, there was an extension agreed to between the taxpayer-electrolux and the government, which kept the statute period open for 1994 until 1999 and 1999 to file a deficiency claim by the government, June 2000, for electrolux to file a refund claim. In December of 1999, electrolux decided that it incorrectly limited itself into original 1994 final, because the loss disallowed school was not proper, and therefore electrolux was entitled to $45 million additional loss, loss that had incurred in 1994, but had not declared before. And it decided to therefore file refund claims for the years in which it could use offset that loss against capital gain. Accordingly, in December of 1999, electrolux filed refund claims for 1993, 1995, 1996, 1997, 1999, using up the entire game. The government allowed the deductions for the carry-back year of 1993, and carried forward years of 1996, 1997, 1998, but did not allow a portion of the 1995 carry-forward claiming claim was not timely under the normal statute of limitations, which was three years, and the 1995 three-year statute of limitations concluded in September of 1999, a few months before the refund claim was filed. Mr. Friedman, where is the lower court in error, and its determination of attributable to such carry-back? Why is it wrong to define it the way it was defined below? The lower court is in fact amidst narrow interpretation of the term attributable to, because as the court in Fischer-Kaugau, the term attributable to is a broad use of the phrase, which not only applies to the carry-back, but to any carry-forward that can be traced to the carry-back, or is affected by the carry-back. How is it affected by the carry-back? Let's assume for the moment that you had $50 million in capital losses in 1994. 91.92 and 93, you had capital gains that could be offset the entire amount. So at that point, you would not have any carry-back
. Now, take the opposite result. You have $50 million in capital losses in 1994. No capital gains in 1991, 92, and 93. So all you could do is carry a fold. You still carry back under the stretch to the carry-back? No, would you carry a fold, even though you don't have any offsetting capital gains at that point? So you're saying that the method of calculation would be to make a determination that you carry it back for three years, not finding a capital gains during that three-year time period that you carry forward the carry-back. So it changes definition to a carry-back at that point? No, it's still a carry forward, but I lose that short machine in 12. The capital loss must first be carried back. The taxpayer has the burden of showing that it first carries back the capital loss. The fact that the capital losses carry back, and it doesn't affect your taxes, because there's no capital gain, that's still a very real effect. It has to go through that mechanical process. It has to be on those returns. You have to show the returns. Yeah, I mean, you have to show... So even though you're a bookkeeper, well, it's an accounting fund
. The accounting fund has to be traced to the correct book. But the government, but courts have held that is the taxpayers' burden to prove to show... You can't just say I got a carry-form without showing the government that you were unable to use in those carry-backs, what the effects of those carry-outs. Let me just ask you a quick question, because I think I may have... I probably said something that... At least isn't a side-prehensial in my part, maybe it's wrong. Are you actually required to file an amended return simply to show that there were... This carry-back has to
... No. You just represent it. Okay. I'm fine with that. We did not let go of to not file the negative return. So the carry-back mathematical computation in order to get your carry forward is an accounting matter. It's not a tax matter. I mean, it's a tax matter. It's not an IRS problem. It's an accounting problem. Well, it's an accounting matter, but I mean, again, it is the burden on the taxpayers' show. Can you file that matter? You got a certain commissioner that they weren't any losses that could have been offset. Exactly. I mean, we had the burden to show
... There was that anyone came back and made to show us some paper, but it is the taxpayers' burden to show that, and this is an important point, a very important point, because so long as I'm 94 years old, the government was free to go back to 1912-1992. The fact that the lunch looks did not have to not say it, and that's how to say it, those additional gain in 191, for which it wanted to offset, did not approve the government for re-looking at 191, finding another gain, did not in this case. It couldn't have done that. All of which... All of which doesn't make the overpayment attributable to the carry-back, does it? A attributable to the carry-back? Absolutely. A attributable to is, as Judge Woodick said, trees too, affected by. It is something that you cannot know the existence or the amount of any of those carry-forms under this statute and mechanism until you go through that process for the 191-1992-93 carry-backs. What was the trial judge's response to the first Chicago's adoption of Judge Woodick's position? The distinction sheet, the trial court, in one line, if I can no reason, has been to distinguish first Chicago by saying first Chicago and then, if you have a different tax mechanism, that was the carry-forward as opposed to the same tax mechanism. What do you understand? What do you understand she meant by that? I understand she meant by that, to her there was some difference in having a change in the 191 year that had something else generally. I don't see where the statutory language requires something, a new to be generated as opposed to the same folks-protein tax mechanism, which is this capital loss, which we have to go through the process of 191-192-93 before we know that we have a 95. And then, in fact, with the amount of that 195-196, I said, on four, you can't find that. You don't know that 195, so you go through this process because the statutory mechanism requires it
. It is said to me that it is meant to a shell go back and do that. And also, again, the fact that you can be new gain or loss in those carry-backed years can be put into the equation, which has the effect of changing that 95 capital gain. And the example that we did in Fort Moe, it's number four of the required roof. I mean, in this case, the change was to the year of the loss. But it didn't have to be. You can have a very similar factual scenario where the change is in one of the years of carry-backed. So instead of having additional loss discovered for 94 within the statute, in the case of 94 and thus 93 being opened by virtue of a carry-back, we discovered that, in fact, there was less gain in 93 than originally reported. Well, if there's less gain than originally reported, still the open statute hasn't closed. And there was a tax-free transaction that we originally thought was taxable. And so now we have less capital gain than 93 in originally reported. And when it had soaked up the entire capital loss on the original return, now once we have adjusted it, we see that doesn't soak up the entire loss. And we have a carry-thru, it comes in new now. Now there is a 95 carry-over, which was not originally reported because of this change in 93. Well, it's a very odd circumstance of 93 is open to say that 95 is an effective, isn't caused by. That's how the carry-over came about. That's changing the spoken carry-back year of 93
. Would 92 and 91 also be open? Yes, absolutely. And so all carry-dributive carry-back years were open and the ripple effects they're on were open to. So long as the year lost was open, which again, here about extension, the year the loss was open. There's some ironic situation we have here of the loss open, which is chronologically earlier in the year of carry-form, which is how this works. Mr. Friedman, if you were rewriting this statute in order to avoid this problem, what would you do? You would just add our lost carry to make it make just workers absolutely explicit. I'd say the attributable to carry-backs and their effects. Well, the easier and less effects are already getting to murky ground, whether attributable means affected or amount is affected by, there are a lot of things that can affect the amount of the claim. But the attributable is... Wouldn't you just as presiding judge for I.C. suggests, wouldn't you just add carry forward? No. You would. No, I would not, because there are capital losses in the code that can be carried forward and not carried back
. Those sectional 12 has such things, and those are different. Those you don't have this effect of potential changes in the 91, 92, 92, 93 carry-back years, that would affect the carry-form. You just have the year of the loss that affects it. And therefore, that is a different mechanism. I'm not saying that wouldn't be a bad thing, either. Poglocionalize. But you don't need to go that far to get a result. Well, affected by the carry-back is enough because the effects of a carry-back must go through before the carry-form is different than a capital loss that is only carried forward. So at a minimum, you would change attributable to affected by? Yes. Which is essentially what just what it was said that the law language was in his opinion in First Chicago. Of course, that was... Let's see, we're in here, but I'm showing you the rest of your report. Mr. Carver, we'll hear from you
. May it please the court. Your Honor, Judge Brein, you correctly held that the resolution, in this case, begins and ends with a plain lack of 65-11 to D2A. Yeah, but that's not the position the government took in First Chicago. I have the feeling that you all take a position to get money rather than to read the statute. What do I have to make of this? I'll turn it right to that case. And there is no inconsistency between our position here and the position in First Chicago. That statute in First Chicago was the parallel to this one. It had been gave the commissioner a special period of limitations in the case of a deficiency that was attributable to a lost carry-back here. We're talking about a overpayment that the tribute was with carry-back. But the difference in language is not significant here. I'm just putting it in context. What happened in First Chicago was that the taxpayer had a loss in 1974. It carried that loss back to 71. That had the effect of reducing its tax liability for 71, which automatically reduced its income tax, carry 4 to 72, which is a minimum tax concept. And that reduction caused a deficiency in 1972. So in First Chicago, if there had never been a carry-back, there would have been no deficiency in 1972
. And in that circumstance, the 7th Circuit agreed with Judge Whitaker that the deficiency was attributable to the carry-back, because there was direct cause and effect between the carry-back and the deficiency. Now, to this case, there is no cause and effect between the carry-back from 1994 to 1993. And in the overpayment in 1995, had there been no carry-back here? The overpayment in 1995 would have been exactly the same. It was completely out of fact that it had nothing to do with the overpayment. The overpayment here was strictly a result of taking the loss from 1994 and carrying it forward to 1995. Well, it had carried it forward 95 days and it had carried it back for three years under the statue. Yes, sir. So it had carried it back for three years. And the carry-back provisions require them to do it to cover the losses or offset the losses against the gains. It might be available in 1991, 1992 and 1993. Isn't that really attributable to the carry-forward at that point in time that the carry-back is really an attributable aspect to the carry-forward? Your honor, I think we have to get back to the actual landing to the statue, which is not whether the carry-forward somehow is affected by or attributable to a carry-back. The question is, is the overpayment attributable to the carry-back? Was the fact that the taxpayer had overpaid its taxes for 95 resulted from the fact that it had to first carry its loss back to 1991, 1992, 1993? And the answer is no. That could also be true though for 96, 1997 and 1998. That's right, but they don't need the special staff. Their years were open under the general staff. Right. So the specific statute that required a three-year opening was only attributable to the 95 here, only related back to 95. No, your honor. If you don't have that Statue of Immortations problem, 95 would still be the same as 96, 97, 98, wouldn't it? Your honor, their claim for 95 was untimely under the normal statute of limitations, which is in 65, 11A, which is three years from the time you filed your attorney. They were out of time there. But for the years 96, 97, 98, they were not out of time under the general rule. So they don't need this special rule. That's why the claims were allowed for 96, 97, 98, not because the government in any way conceded that those overpayments were attributable to a lost carry-back. It was that they were under the general rule, which is just you have three years from the time you return this file to file a bank or ring file. But wouldn't those losses really be attributable to the carry-back? No, because if- I'm shutting. No, because if- Let's assume that 1994 was the tax first year of business, and it had the exact same loss it had. It had this capital loss. You would have no prior years to carry a fact. You could only carry it forward. Their overpayments for 1995 have been exactly the same. So there's no cause and effect between the fact that under the law they first had a carry-back before they could carry it forward. The overpayment was unaffected, even as that says it's attributable, which has a well-established meaning
. So the specific statute that required a three-year opening was only attributable to the 95 here, only related back to 95. No, your honor. If you don't have that Statue of Immortations problem, 95 would still be the same as 96, 97, 98, wouldn't it? Your honor, their claim for 95 was untimely under the normal statute of limitations, which is in 65, 11A, which is three years from the time you filed your attorney. They were out of time there. But for the years 96, 97, 98, they were not out of time under the general rule. So they don't need this special rule. That's why the claims were allowed for 96, 97, 98, not because the government in any way conceded that those overpayments were attributable to a lost carry-back. It was that they were under the general rule, which is just you have three years from the time you return this file to file a bank or ring file. But wouldn't those losses really be attributable to the carry-back? No, because if- I'm shutting. No, because if- Let's assume that 1994 was the tax first year of business, and it had the exact same loss it had. It had this capital loss. You would have no prior years to carry a fact. You could only carry it forward. Their overpayments for 1995 have been exactly the same. So there's no cause and effect between the fact that under the law they first had a carry-back before they could carry it forward. The overpayment was unaffected, even as that says it's attributable, which has a well-established meaning. Well, in the overpayment, it depends on what you understand the overpayment. If the overpayment is the accounting calculation of the amount that can be taken against any capital gains in the 1995 year, then that amount, the exact amount, is indeed attributable in part at least to the carry-back. If the overpayment means the concept of the fact that they had an overpayment, that concept is certainly not attributable to the carry-back, is it? No, for your own- So which is it overpayment? Are we dealing with an accounting problem? Or are we dealing with some- This legal concept of an overpayment? The overpayment has a well-established meaning, is that the taxpayer has paid more money than the tax that's imposed by the code. That's why there's an overpayment. You pay more than you owe. So the question is, is the fact that you now- You're saying the statute's use of the word overpayment doesn't address the amount of the overpayment. It only addresses the fact that there is an overpayment. That's right. And the question is, is the fact that you have an overpayment, we're talking about 1995, is the fact that you overpayed your taxes for 1995? A result of the fact that you had to carry your loss back to 1993 before you could carry what was left in 1995, and the answer is no. If you had not carried your back, you would have had the exact same overpayment. In this case, there's no cause and effect between the fact that they had a carry the loss back first, see what's left, and then carry the remainder forward. It's the same amount that he'd need to taste. Now my opponent would construe the statute as if we've got a special statute of limitations. In the event that the amount of an overpayment may be affected by a carry back. Well, if that's what the statute said, then it wouldn't be here. In any given case, the amount of an overpayment may be affected by a carry back in the sense that the loss may be used up entirely or partially by the carry back years
. Well, in the overpayment, it depends on what you understand the overpayment. If the overpayment is the accounting calculation of the amount that can be taken against any capital gains in the 1995 year, then that amount, the exact amount, is indeed attributable in part at least to the carry-back. If the overpayment means the concept of the fact that they had an overpayment, that concept is certainly not attributable to the carry-back, is it? No, for your own- So which is it overpayment? Are we dealing with an accounting problem? Or are we dealing with some- This legal concept of an overpayment? The overpayment has a well-established meaning, is that the taxpayer has paid more money than the tax that's imposed by the code. That's why there's an overpayment. You pay more than you owe. So the question is, is the fact that you now- You're saying the statute's use of the word overpayment doesn't address the amount of the overpayment. It only addresses the fact that there is an overpayment. That's right. And the question is, is the fact that you have an overpayment, we're talking about 1995, is the fact that you overpayed your taxes for 1995? A result of the fact that you had to carry your loss back to 1993 before you could carry what was left in 1995, and the answer is no. If you had not carried your back, you would have had the exact same overpayment. In this case, there's no cause and effect between the fact that they had a carry the loss back first, see what's left, and then carry the remainder forward. It's the same amount that he'd need to taste. Now my opponent would construe the statute as if we've got a special statute of limitations. In the event that the amount of an overpayment may be affected by a carry back. Well, if that's what the statute said, then it wouldn't be here. In any given case, the amount of an overpayment may be affected by a carry back in the sense that the loss may be used up entirely or partially by the carry back years. So the amount may be affected in a given case by the carry back, but the statute doesn't say that. It says, is the overpayment attributable to a carry back. In fact, even if you had the language, was the overpayment affected by the carry back? And the answer here is no. It wasn't even affected. It didn't reduce it from what it would have been otherwise. If you had to rewrite the statute to solve their problem, what would you do? In their favor. Oh, I would say in any case that an overpayment is attributable to a carry back or carry forward, you get a special statute of limitations. And I suppose you could specify that subclass of carry forwards that required a carry back first simply by saying, except including only the following exception. The general rule is after corporations, we're talking about a casual loss here, but they're required to carry back. So on the general rule, the general will be every carry forward is attributable to a carry back, which is because you have to carry everyone back. But the statute doesn't say that. It's going to give you extra time if your overpayment is attributable to a carry back. Was your overpayment caused by the carry back? And the answer here is no. It wasn't caused by the head, no effect on it. And I would distinguish an knowledge in first Chicago, whereas I pointed out in the absence of carry back, it would not have been a deficiency. So there was a direct clause in the fact
. So the amount may be affected in a given case by the carry back, but the statute doesn't say that. It says, is the overpayment attributable to a carry back. In fact, even if you had the language, was the overpayment affected by the carry back? And the answer here is no. It wasn't even affected. It didn't reduce it from what it would have been otherwise. If you had to rewrite the statute to solve their problem, what would you do? In their favor. Oh, I would say in any case that an overpayment is attributable to a carry back or carry forward, you get a special statute of limitations. And I suppose you could specify that subclass of carry forwards that required a carry back first simply by saying, except including only the following exception. The general rule is after corporations, we're talking about a casual loss here, but they're required to carry back. So on the general rule, the general will be every carry forward is attributable to a carry back, which is because you have to carry everyone back. But the statute doesn't say that. It's going to give you extra time if your overpayment is attributable to a carry back. Was your overpayment caused by the carry back? And the answer here is no. It wasn't caused by the head, no effect on it. And I would distinguish an knowledge in first Chicago, whereas I pointed out in the absence of carry back, it would not have been a deficiency. So there was a direct clause in the fact. But the other case that my opponent relies on the distant court case in Marshall Town, also there was direct clause in effect. And that was the same statute we're talking about here. In that case, they had a loss in 85. They carried it back to 79, which eliminated all their tax for that year and freed up investment credits, which then carried forward to 1980 creating an overpayment in 1980. So in that case, once again, if there had been no carry back, there would have been no overpayment for 1980. So in that case, the overpayment in 1980 was attributable to the carry back. It was an automatic effect that but for the carry back, there would have been no overpayment. Now if you apply that saying, but for a test here, but for the carry back, would they have had an overpayment for 1995? The answer is yes. They would have had the same overpayment. It had no effect. It did not cause the overpayment. The overpayment was the result of the had a loss of 94 after carrying it back. They had used up all the walls so they still had quite a bit left. And now they are allowed to carry it forward. And that carrying it forward produced the overpayment. You are not sure if the overpayment has nothing to do with the amount of the overpayment
. But the other case that my opponent relies on the distant court case in Marshall Town, also there was direct clause in effect. And that was the same statute we're talking about here. In that case, they had a loss in 85. They carried it back to 79, which eliminated all their tax for that year and freed up investment credits, which then carried forward to 1980 creating an overpayment in 1980. So in that case, once again, if there had been no carry back, there would have been no overpayment for 1980. So in that case, the overpayment in 1980 was attributable to the carry back. It was an automatic effect that but for the carry back, there would have been no overpayment. Now if you apply that saying, but for a test here, but for the carry back, would they have had an overpayment for 1995? The answer is yes. They would have had the same overpayment. It had no effect. It did not cause the overpayment. The overpayment was the result of the had a loss of 94 after carrying it back. They had used up all the walls so they still had quite a bit left. And now they are allowed to carry it forward. And that carrying it forward produced the overpayment. You are not sure if the overpayment has nothing to do with the amount of the overpayment. It is the existence of an overpayment. Well, there is an open existence of the overpayment that has to be caused by carry back. You have to have a causal connection between the fact that you overpayed your taxes for the year an issue. The fact that there was a carry back, now that most obvious example is that they are taxable year 1993. They had a loss in 1994. They carried it back to 1993 after they produced no overpayment. They were not paying for 1993. That overpayment was attributable to the carry back. That was a direct effect of the carry back. When you turn around and look at 1995, there is no causal connection. If there had been no carry back, they would have the same overpayment that they had. So there is no connection between the two. So no matter how you twist the words, you cannot say that the reason they overpayed their taxes for 1995 was because they had a carry back the losses to 1991, 1992, 1992. But the 1995 overpayment was attributable only to the loss in 1994 because they paid the regular taxes in 1995 without consideration of the loss in 1994. They had to go back and reestablish the amount of the carry forward by going through the carry back years. Why would the amount of overpayment made in 1995 than the attributable to the carry back provisions? It is not just the capital loss incurred in 1994
. It is the existence of an overpayment. Well, there is an open existence of the overpayment that has to be caused by carry back. You have to have a causal connection between the fact that you overpayed your taxes for the year an issue. The fact that there was a carry back, now that most obvious example is that they are taxable year 1993. They had a loss in 1994. They carried it back to 1993 after they produced no overpayment. They were not paying for 1993. That overpayment was attributable to the carry back. That was a direct effect of the carry back. When you turn around and look at 1995, there is no causal connection. If there had been no carry back, they would have the same overpayment that they had. So there is no connection between the two. So no matter how you twist the words, you cannot say that the reason they overpayed their taxes for 1995 was because they had a carry back the losses to 1991, 1992, 1992. But the 1995 overpayment was attributable only to the loss in 1994 because they paid the regular taxes in 1995 without consideration of the loss in 1994. They had to go back and reestablish the amount of the carry forward by going through the carry back years. Why would the amount of overpayment made in 1995 than the attributable to the carry back provisions? It is not just the capital loss incurred in 1994. Because it had no effect on the amount of their overpayment, they had the law required them to carry it back. Why would it have an effect on their overpayment? They overpayed their taxes because of the fact that the loss in 1994 couldn't be taken until they carried it back to 1993, 1992, 1991. Yes. And then carried forward if there was any overage. Yes. So the point is that the fact that they had a carry back meant that it was possible that the loss they overpayed they otherwise would have had in 1995 that they did permitted to carry directly forward could have been reduced or eliminated if they had enough capital gains in the year 1993. They might not have been able to carry forward. So that could have had the effect of eliminating their overpayment. But it wasn't going to generate an overpayment. It wasn't going to increase an overpayment. It could all be produced. But in fact, in this case, it didn't either because they had so much capital loss that even after applying the gains they had in earlier years, they were left with a large chunk of the 1994 loss which they then were allowed to carry forward. They were having previously applied the loss to the capital gains they had in the carry back years. So now they have this loss for 1994. They're going through the steps of using up what they had. So now they have this large loss in 1994, which they carried forward
. Because it had no effect on the amount of their overpayment, they had the law required them to carry it back. Why would it have an effect on their overpayment? They overpayed their taxes because of the fact that the loss in 1994 couldn't be taken until they carried it back to 1993, 1992, 1991. Yes. And then carried forward if there was any overage. Yes. So the point is that the fact that they had a carry back meant that it was possible that the loss they overpayed they otherwise would have had in 1995 that they did permitted to carry directly forward could have been reduced or eliminated if they had enough capital gains in the year 1993. They might not have been able to carry forward. So that could have had the effect of eliminating their overpayment. But it wasn't going to generate an overpayment. It wasn't going to increase an overpayment. It could all be produced. But in fact, in this case, it didn't either because they had so much capital loss that even after applying the gains they had in earlier years, they were left with a large chunk of the 1994 loss which they then were allowed to carry forward. They were having previously applied the loss to the capital gains they had in the carry back years. So now they have this loss for 1994. They're going through the steps of using up what they had. So now they have this large loss in 1994, which they carried forward. The overpayment is attributable to that. The carry back could have only eliminated or reduced it. It didn't do either here. But it certainly couldn't have caused it. It couldn't have generated it. And it didn't. So in no sense can they say that, but for the carry back, we would not have had the overpayment. Now they're going to have the overpayment in the year if there was no requirement to carry back. It would have been exactly the same. It didn't even affect the amount. Thank you. Thank you. It is not correct to say that there's no effect. The carry back has to occur. And it doesn't occur. And you can't tell about the 95 overpayment with the capital gains
. The overpayment is attributable to that. The carry back could have only eliminated or reduced it. It didn't do either here. But it certainly couldn't have caused it. It couldn't have generated it. And it didn't. So in no sense can they say that, but for the carry back, we would not have had the overpayment. Now they're going to have the overpayment in the year if there was no requirement to carry back. It would have been exactly the same. It didn't even affect the amount. Thank you. Thank you. It is not correct to say that there's no effect. The carry back has to occur. And it doesn't occur. And you can't tell about the 95 overpayment with the capital gains. I don't think the government saying there's no effect. Mr. Friedman, I think what they're saying is that the carry back could have the effect of eliminating the overpayment in 95. But it couldn't have the effect of creating the overpayment. And two points on that. The first, as we said in the brief, linguistically, I don't see the difference between failing to preclude something and creating something new. The fact that the 91, 92, 993 carry backs have the ability to preclude it up preclude it. And it had to occur before the 95 carry over occurs. I don't see why it's not causing due to generally. But more importantly, again, the fact scenario here, we have both 94 as the initial calls and then the carry backs are. But when we do the fact scenario with a 93 year, there's a change in the year of the carry back, you can see the overpayment coming in. I mean, it's not a hard envision that the 93 say find additional capital gain in 93. Too much capital gain use 93 such that it didn't originally have any carry forward. You would originally soaked up the entire carry back. There's a lot of logic to your position. The question I have to wrestle with is whether the statute, unlike most of the internal revenue code, is intended to incorporate that logic
. I don't think the government saying there's no effect. Mr. Friedman, I think what they're saying is that the carry back could have the effect of eliminating the overpayment in 95. But it couldn't have the effect of creating the overpayment. And two points on that. The first, as we said in the brief, linguistically, I don't see the difference between failing to preclude something and creating something new. The fact that the 91, 92, 993 carry backs have the ability to preclude it up preclude it. And it had to occur before the 95 carry over occurs. I don't see why it's not causing due to generally. But more importantly, again, the fact scenario here, we have both 94 as the initial calls and then the carry backs are. But when we do the fact scenario with a 93 year, there's a change in the year of the carry back, you can see the overpayment coming in. I mean, it's not a hard envision that the 93 say find additional capital gain in 93. Too much capital gain use 93 such that it didn't originally have any carry forward. You would originally soaked up the entire carry back. There's a lot of logic to your position. The question I have to wrestle with is whether the statute, unlike most of the internal revenue code, is intended to incorporate that logic. And the best evidence of that is judge where it was intended. Judge where it was intended in first Chicago, clearly stating that the purpose of this language was broad language while leading to an overpayment attributable to a carry back was intended to include not just carry backs, but carry over. She says that with clear language, where the carryover can be traced to not the initial calls but traced to the carry back. Doesn't have to be the first Chicago's no difference. The mechanical application of the code carry back was a capital loss occurs 74 carry back to 71. But can't it be pauses a carry forward to 72? Have it to be a year that's also carry back here, but that don't think that's not what that is. 72 about 75 in the case that was made out of arguments. That mechanical application would go. We say a carry forward that was the alternative minimum tax. Different tax mechanism, the alternative tax in first Chicago as opposed to the initial loss carry, lost this case. But again, mechanical occurs in the case of the case. It affects it, it's traced to it, therefore one interesting question was the government has taken it to another point made in our footnote 4. Imagine the scenario here where instead of having additional capital loss in 94 people per year. Imagine that like the locks in 94 had initially taken a certain amount of loss, carry it back by the 1, 2, 9, 3. So we carried a portion of it to 1995 and offset that against capital gain in 1995 and if I were reducing the tax in 1995. If during the audit prior to the conclusion of 1999, the government had determined that too much loss was taken in 94 and had reduced it, reduced it such that there would be no carry
. Carry over was a problem. But 95 and close, I think the government in that case would have a very different view of the tax control language and whether or not it would be allowed to say that that carry forward is attributable to the carry back and thus open for the government to retrieve an inefficiency plan. Thank you. Thank you very much. You're welcome