think here the court erred in judicial snapple because there was no finding in a prior tax court cases no stipulation that address the fixed base percentage for judicial will to apply the party has to take a position on the issue that shouldn't rely on that what alternative fixed base percentage with the government be reliant on well st of all your honor there is a stipulation in the prior case then there are two stick deficiency and not of the underlying figures in computing that credit were part of any stipulation of before the court or any findings of representations to the court so the parties compromised and whatever what might have gone back and forth between the parties the what the court was trying to do here was to take certain issues off the table as to if there was no dispute well i think the problem was that there was a dispute an opposing one and where it's manifested in the record that there was a dispute  that that if there was no prior stipulation on this issue and this is a matter on which the taxpayer has the burden of proof we didn't come forward with an altar and i think you get disputed something and i have someone else have the burden of proof and still have a position you can say they said example if you are claiming that you're entitled to this is an auction of a one thousand dollars and you come in and say i'm entitled to the but i have no receipt government tell me what the right number is and the government's going to take the euro because you have no receipt so this is this is there there's a to a sion is that they had to come forward with the evidence to show what the proper to a percentage is and the problem is that the who are not only that issued a very broad ruling on the man in the process of winning this case and then stipulating to appoint ninety two and you've got yours principal and and end up agreeing to the ninety two after all you make well i think the important issue and i don't know that the eight we don't know what evidence they have because they haven't come forward with i must say have i guess my my thinking on that issue is a little bit colored by your raising of the other issue which i found surprising i is the judgment didn't specify one way or the other and i think you've just written to the other side and say we know that you're not allowed you know that you're you're not entitled to the other would you be willing to agree that you're not entitled to the that could have been solved in simple interchange between counsel or did you ask and they said no we do we were preserving all of our options i was not involved in the all the back and forth with trump now because that wasn't involved in the trial they get benefit from which is what happened here in the ira's argued a higher percentage and got the poor by agreeing that this is the credit card bill ation to reach to rely upon it to issue a deficiency against to talk about this issue though exhibit in there if you look at the arguments in the be troubled or there is no alternative based calculation there's nothing in there disclosure statements there's nothing in there discovery this is there is there is no alternative six base percentage sitting here today i can tell you if you look through the entire record you will not find one two percent or a two five percent or sixteen percent it doesn't exist it was made up of the worst of this appeal it wasn't it wasn't in the issue that they the motion that was granted asked the court to order the senate to be precluded from making any reference in front of the jury to the eighty's based calculation or to suggest that it be any alternative amount and so we were basically we were precluded by that percentage and my point is there's not one of those from the government in the record is there well that is part that is because that is st of all we were provided from arguing about whether the number that the taxpayer presented was correct and it was that has the taxpayer that keeps records about what it is its research expenses are and it could come forward with that number and to ask the government doesn't have the burden of proof and it is precluded from arguing about taxpayers number to come up with another the way a summary judgment because had there been a motion for summary judgment we would have a record of the evidence in support of the two percentage rate and we don't have