items that c s x transferred to its employees stock and then relocation benefits payments that c s x pays in connection with moves that its employees make in order to make them whole so that's my understanding correct now that you in the government now agree that based on the supreme court's decision in wisconsin centro versus united states stock is not taxable compensation under the act because it's not money or immunization that well that is  certainly agree with that position and so and then did the first point is that i believe the government agrees with us that the district court's judgment as to that particular item the stock item needs to be reversed and so this appeal really comes up to the court just on the second of the two items relocation benefits and while the wisconsin central wasn't a case about relocation benefits it was just about stock some of the principles that the supreme court articulated in the course of interpret in the r t a are useful for understanding our interpretation of of relocation benefits that's mentioned in one of the footnotes at our brief opening brief and it's also mentioned again in our reply brief but the broader question the one that is certainly not waived is what is the meaning of the one trip lie the exclusion for traveling or other bona fide unnecessary business expenses and that's the one i really want to focus the court on today because the resolution of that resolves the only remaining issue that's live between the parties on the appeal and my point to that your honor is out although wisconsin central which came out after all of our briefs here speaks to how the court should interpret the r t a and there are a couple key principles that the court articulated in connection with stock that apply to the interpretation of the one trip a a is an eighty year old statute the congress has amended at least once every decade over all those eighteen years and it's important to understand the meaning of any individual provision in the in that statute at the time it was an act of the original ordinary meaning at the time it was an acted later amendments can affect that original meaning but only if congress has made it clear that it intended those amendments to change the preexisting original meaning if there's a positive repugnancy between the old and the new or if there is some sort of irreconcilable conflict between them and the other point we draw from wisconsin central just as a table setting matter is that they are r t a and fica may have similar purposes but they are different regimes very different regimes and congress when it makes differences in how it writes fica how it writes the r t a those are differences that need to be respected not differences that should be erased and so the question for this court is whether the one triple why the exclusion in the r t a means as the government claims that it covers only excludes only traveling and travel related expenses that's wrong your honor the original meaning of the one triple why when it was adopted in one thousand nine hundred six in one thousand nine hundred seven is clear that catch all other bonafide unnecessary business expenses has not never has not and never means just travel related the word travelling covers out all by itself congress would not have needed to include if we accept your argument would we create a circuit split  argument your honour's the we think the fifth circuit got the decision wrong i guess i would just hesitate saying that it's a circuit split because when the supreme court in wisconsin central held that stock was not tax fifth circuit drilled the fifth circuit get the relocation benefit question wrong so judge wilson my view is well that's an interesting analysis that the fifth circuit uses fifth circuits construe the statute to exclude moving expenses render section thirty two thirty one so easy five superfluous but elevating the canon of construction that we use in the statute should be construed said so that no part of it them are fringe benefits which is a collection of the range of expenses that employers give or benefits gives me that employers give their employees in a single one of those fringe benefits is qualified moving expenses and so as we explained in our court noted that in the rhine vs imagine this case and this is a situation where the five in one trip a lie have a teeny bit of overlap on qualified moving x expenses but neither provision would be rendered police a purpose the fifth circuit  and in finding that a five is specific to and covers only qualified moving expenses if i could point before the new before the new section was enacted what was the i r s this treatment of five did not reference qualified moving expenses this is a very important point five when it was added in one thousand nine hundred four included a cross reference to section one thirty two which is an income tax section and and at that time one thirty two did not reference qualified moving expenses it was not until nine hundred ninety three so almost ten full years after if i was put into the r t a that a different congress was making amendments to one thirty two and included a cross reference from one thirty two to two seventeen which is a qualified moving expense provision so the government's theory in the one that i think the fifth circuit sort of bought into was that the five change the original meaning of the one trip a lie but in fact the five when it was put in said nothing about moving expenses and we know from the historical record that one trip a lie included much much more than travel and travel related expenses for a while there are no cases one way or another on moving expenses there are cases on tools there are cases on uniforms there's cases on tuitions and other words that's a lot more than just travel and travel related and other it was our our view is that in one nine hundred seventy seven that catchall really meant what it says which is that it applies to other bona fide and bona fide unnecessary business expenses of whatever kind just short and there may not be a specific case applying that catch all to moving expenses but there's no specific case applying that catch all say to copy paper and if an employer gives twenty dollars  employee and says go buy some copier paper is the copiers all out that would be a reimbursement for a bonafide unnecessary business expense and the fact that there is no dispute in the historical record in our view supports the idea that there was no dispute amongst employers in the i r s that moving expenses were actually covered by this catch all and it wasn't until much later that this became an issue the government makes an alternative argument that even if your statutory interpretation is the correct one then you failed as a factual matter to satisfy the requirements of the one triple lie because you did not show that they were bona fide and necessary or reasonably expected to be incurred so i believe the government is wrong on that judge gordon this was briefed up on summary judgment we had used a long series of statements of what we viewed were undisputed material facts that demonstrate the bona fides than a set necessary ness and that these were business expenses the government's response their response below to you whatever you were the first move in for summary judgment was cross motions your honor ahsoka who moves first i believe they were simultaneous your honor but the government's entire response to you if you read the brief that they wrote below it says we decided we the government disagree that these are bona fide and necessary but the question is what's the because it says we believe they're not going to fight a necessary because you want triple eyes limited to travel trouble weighted expenses this case comes to the court  ambiguity it has to be resolved in favor of the public your honor there is no doubt or ambiguity about the scope of what those words mean the only question and it's a factual question that every court will need to consider on a case by case basis is has the employer demonstrated that these answers are bonafide that they are necessary and business expenses we believe we did that below the government came at us there and here only on a question of statutory interpretation not on a question disputing are facts and that's because your honour's of these kinds of call non qualified moving expenses are widely commonplace throughout the united states indeed the government itself in the federal travel regulations provides for a whole range of these similar kinds of expenses what employers do not just in the railroad industry but throughout the united states economy is they try to make their employees whole yesterday went on to say yes x broad interpretation of he won triple why limitation and one that i think addresses much of your concern is that it must be in the form of a reimbursement and allowance or an advance and an allowance of course is sort of these lump sum payments that are estimated in advance to cover someone's upcoming expenses where is reimbursements in advances are receipt mechanisms where there's a dollar for dollar exchange that's a that's a key component but the statute has more than that it must be bona fide it must be done in good faith it must be necessary to the business and while the supreme court has said that the word necessary in business expense statutes like this is not a high bar judge nor it is still a bar it still has some teeth that the employer on a factual basis must demonstrate as c s x demonstrated below and moving for summary judgment rebuttal from the government that these were bona fide and necessary business expenses there's one last issue i'd like to address your honor's i only have about six or seven seconds here it's on the accountable plan alternative argument that the government has also raised could have a argument and i'll read almost quickly because you only gave me a minute the first is that it's far from clear that accountable plan rules which are an income tax provision actually cover moving expenses as a class they refer to travel the regulations refer to entertainment but they don't refer to moving expenses like we have here second the record shows that c s x got receipts when it was doing reimbursements as he went triple i allows but what c s i s didn't get receipts for is allowances and this is the key point allowances the whole concept of allowance the defining characteristic of an allowance is that the employer and employee don't have to get receipts from each other congress when it put one triple into the r t a was copying cribbing from a fica regulation but one of the key differences fica doesn't mention allowances congress added allowances because the railroads have a long tradition of giving lump sum payments to their employees to cover expenses and the government's argument that we fail under accountable plan is essentially an attack on congress innovative adaptation of the fica expense exclusion for the railroad they're trying to delete allowances from the statute i've already used my extra minute your honour's i'd like to save the remainder of my time for  i think that's why some courts have said that waving in a footnote is not enough because several of us read that brief looking for that argument and didn't find it first time through but anyway we do have a knowledge that the waiver can be excused in light of intervening supreme court precedent but we think that every man is that it doesn't make for moving expenses are excluded and these aren't just as your writers have recognize there is an exclusion under a five that deals with a narrow set of moving expenses basically the cost of the movers in the truck to move your things one place to congress incorporated that any five and in the similar fica provision extending that to the employment tax context and as the being s f court held i think it is still good law on this issue and to hold otherwise would create a circuit split the specific provision deals with with moving expenses and he wants replies shouldn't be construed to have this broader a fact i think the better reading of one trip law is that it was aimed at basically it including  a what the travel regulation did for fica and it was aimed to disclosing those kinds of expenses that employees incur while they're working for the employee which would primarily be probably expenses it's not aimed at what is a reasonable it's a business expense for the employers to see if x is really asking the wrong question and i think there are several guys to interpretation than indicate the this is the correct reading and it says and it's first of all it's a consistent reading with the more specific seclusion and gives to the language of each reply and to the specific exclusion in the five and also as the b s of court pointed out gives meaning to all these other exclusions the c s xs interpretation would make meaningless i mean it's not their broad reading basically says anything c s that says would entice employees to good employees to stay with that or motivate employees or be good for its business can be excluded and if you if you read it that way not only the moving expense part of  handle anything having to do with relocation expenses before the five was enacted well if i can go into the history of the statute and sort of the nature of moving expenses has always been a personal expense and that and  added to the code a deduction for moving expenses at that point it put it in the section but part seven of subchapter b that deals with personal deductions and at that point it was still treated as a personal deduction and at the same time i think just a couple years later added section eighty two to the code and it make clear that if someone else pays your moving expenses that's income and so you had someone else measure him moving expenses it's income if you pay them yourself you could a deduction and it stayed that way until the one nine hundred eighty s when congress started making changes to the fringe benefit provisions and adding some provisions that excluded certain fringe benefits because it found that there had been a lot of lack of clarity about which things were something official not something that might have been talked about within the confines of the i r s building did the i r s take any position well you know anything there was a line standing view that if something was not there was a specific solution or deduction and they didn't view i mean there was never to my knowledge anything that viewed each reply as having that scope or not having that's are not well there was there was there was certainly was legislation i mean in acting regulations and that sort of thing i think there was generally there might be something in a preamble to regulation somewhere that said one way or the other but i think that the services understanding is that because it was this  argument is based on the premise that the tax code is an understandable thing and i think that premise can be attacked on a whole number of levels one is that the tax code is  not understandable in a lot of ways that congress picks out it modifies it changes it here or there but doesn't always try to make the entire thing a cohesive whole and that's why it's been referred to as a labyrinth so i'm trying to see whether or not the i r s took any formal position on the meaning of one triple i before e five was enact because it seems to me that that's relevant if the i r s had said in an opinion letter although that's not technically binding but it gives the i r s his view that a one triple i didn't cover relocation expenses in the railroad industry that would be an indication of a consistent interpretation by the service on the other hand if the i r s said oh yeah relocation expenses are  covered that affects the analysis too because you've got a position that covers it then you've got a new specific provision and you've got to figure out whether or not there's repeal by implication but there's there's nothing out there  you want to reply was added and the time if i was added i would have to go back and look specifically at all the regular rulings that came out in between there just to see if there was anything either in the government's positions in case law which was ongoing in the fica context or whether there was anything you know in rulings that address that but i'm sure that you know i think that i'm sure that the government's position was that it was not that broad because congress when it acted thirty two thirty one you want apply it said very explicitly in house in the house report ninety four fourteen sixty five that we cite in our brief specifically said it was trying to create an exclusion of the same scope as as the fica travel regulation what they are us always understood it to be doing and there are several cases that were decided in the course of appeals in early two thousand and where they were in litigation earlier and what positions have been taken earlier i'd have to look into but there was an american airlines case in the federal circuit and the dorgan case in the eighth circuit that both looked at this language and looked at the fact the statute the fight the fight the travel regulation which has almost identical language and explains it's about not about what expenses are necessary to the employer but about the kind of expenses that would be excludable if the employee are encouraged him while he was doing the business of the employer and and then  how this works in practice and maybe educate me a little bit under eve five when and referring to one thirty two when is an employer able to exclude a relocation benefit from income if the employee moves for work and the employer pays for it yes the employee can exclude only that portion of the relocation benefit that the employee could have deducted if the employer paid it himself under two seventeen and that's confined to the moving truck coming to the house the movers loading the truck and that moving it being carried away or taken to the next place and their lodging why they move and that's not  employees decision to move under the code generally and historically and i concede the court a pre to seventeen case that explains this as a personal view and i think the jordan case in the circuit which i know this is a specific provision dealing with railroads a whole well the supreme court six is directed in f d a versus brown and williamson that session reconstruction is a holistic matter so it's not a matter of looking at these provisions within the whole context of thirty to thirty one and employee expenses that in the employee incurs in the scope of his employment and it really the very effectively explains how this language is intended only to focus on the things that the employee incurs while he is doing service for the employees like wiley for the employer while he's on a business trip while he's doing his job and not these other kinds and it might be some incidental things besides travel but but it's not something like moving expenses that's a whole separate category of personal expenses and let me get out let me get out this or try to get at this through another angle before e file of was enacted war normal typical relocation expenses the one you mentioned having the moving truck pull up to the house take the furniture out put it in the truck and move it to the new residence where those things captured within the ambit of the one triple why were the normal the things that were deductible under two seventeen i don't know what two seventy two seventeen is the person adoption for moving is but i'm not worried about that i just want to know before the five was enacted see a sex pays says to an employee who works in my make up a state montana and says we want you to move to georgia the employee says it's cost prohibitive for me to move from montana to georgia i can't do it says will pay your move they pay for a moving company to go to montana or from montana pick up all of the household goods pack him move it all the way down to georgia are those c s i x pays for that through a reimbursement to the employee did those come within the ambit of e one triple i before e five was an active no your hon because those were not expenses that the employee incurred while doing business this that that was something that nobody but that but it's not the be forty five it was not an employee based focus you're saying that now i get it it always has been and i think that from the legislative history that nobody tripple i was an employee base focused and that's the point of the joint is a based on what was reasonably necessary reasonably expected to be incurred in the business of the employer by the employee when he's doing his work and that's what the legislative history and the jordan case explained and jordan it was a situation where the employee was commuting decided not to move because he didn't like the new town and stayed in the old place the employer pay for him to fly to the new town and the employer tried to claim under the similar fica travel regulation that has the same kind of wording as you want to imply that that was  it was an active was intended to have the same scope as that if i could travel regularly in terms of a permit or in jordan it was a permanent it was a the company headquarters or the principal place of business where the if i could just briefly address this argument about an accountable plan rules because i think the idea that all the employee employer has to do is to just designate something as a business expense is not what surely about under the code i think the bonafide language indicates that it is appropriate for the secretary to exercise the authority under seven eight zero five and six thousand want to impose appropriate regulations this court in trucks sensible to extend these accountable plan rules to the point context the secretary may do so so i think all those things the very explicit authority to impose these countable claim rules and they may make sense as a way of keeping track whether these really are expens right to look at the plain meaning of the one triple lie that's all we have before the relevant time period is one thousand nine hundred three because i think it's the legislative history stature history is clear in one thousand nine hundred four when the five was put into the code there was no reference to qualified moving expenses that at that time it was additional legislative action ten years later when congress is just changing all these cross references we know we describe as a tree in our brief and it kind of is labyrinthian that you've got a cross reference to a cross reference to a cross reference hundred four but the point is before one thousand nine hundred three there's no application that we're aware of one way or another unqualified moving expenses or unqualified moving expenses under one triple i rather what we have is the thing that the courts have most of the time in cases like this which is just the plain meaning of the statute the one triple isis traveling or other bonafide unnecessary business expenses now the fact that qualified moving expenses are already deductible and excludable shows that moving expenses as a category are legitimate business expenses as you noted to jordan the hypothetical of employ moving from montana to georgia it can be cost prohibitive for an individual to make a move and it is important often for an employer to make the employee  in the move not to compensate them or let you know what the government's counter to that factually is not legally is that you are seeking to add a lot of other categories that go beyond the actual moving expense provision is limited by congressional fee up to discrete categories of moving expenses but as we all know you incur additional costs more than just the cost of a moving truck more than just the cost of cardboard boxes and what in those situations is it makes its and its employees whole and there's two authorities i could cite those are going does the i r s get to say to you those expenses are not bonafide unnecessary or can you put everything there without abse any questioning from the i r s i r s is allowed to and then say for example you know on the way from montana to georgia the woods nice for you and your wife to go to a movie else and see a show and we'd like to pay for that show absolutely your honor and that's the reason why we go to court and litigate this as a factual matter to put the employees excuse me the employer to the to the test of his proof how we demonstrated that is bona fide or we them on the side the fact is you want to reply is limited to reimbursements advances and allowances so it doesn't swallow the rest of the act it doesn't allow us to call our compensation a business expense because that's not reimbursement that's just the compensation that the employee gets and so i guess i would like to record in this case the well up enough so that yes we completed discovering if you stop for dinner on the way from montana to georgia or yes there's an issue about whether or not you know that would be an excludable off list is the record of elop in this because it is judge wilson the buyer affidavit which is included in the excerpts of record that we have and that was presented to the court below  explains how we accounted for all of these things in the particular types of expenses that were coded within our payroll system and so i guess i'd like to end your honour's with where i began this is a case about plain meaning that's all we have we believe the fifth circuit got to be f case wrong but just as the eighth circuit decided to disagree with the fifth circuit and the supreme court ultimately vindicated the eighth circuit this court also should reject the fifth circuit's erroneous application of these canons of construction and and