spread out who would never show up any place partnership return that's correct and in fact the government's a rule thirty six party representative testified so it i believe it was to provide to the references options as opposed to the knockout options which in the first two weeks offered three point three million dollars of potential profit in the aggregate coupled with some other program if we just isolate and fair in comparing apples and apples just investment from the beginning we never denied it never ran from it we were quick to say it all were both significant tax benefits and big multiples big trading multiples that was that was the pitch that was that was the attraction if you're going to take the withdrawal from the partnership and the subsequent seo the asset their tax advice through all that fine if you're going to compare apples and apples we have to consider in this dual purpose the tax benefits on the side you can't consider just the tax expenses the economic substance of the transaction in its entirety and all of the expenses associated with that prince action in their green power and looked in examined   profit potential could ever materialize would be with the transactions separate and that the the one call option considered and the other call option ignore and as i understand the transaction that was that was possible but it would it would require consent it would require substantial sums of money that nobody expert said you know this is this kind of trade is the preferred method of trading and leveraging up and getting larger multiples in just a straight up spot position and so you know i think the record is clear on that the question though that i would transaction giving rise to the tax benefit that transaction here is the transfer of the spread to that partnership and to transfer to the partnership they are traded euros or traded spreads in their own account they could have traded in there and i'll see this and in fact putting the spread and the partnership reduced their profit potential because they had seven hundred fifty thousand  that we are never challenging the purchase or the sale of the col auction and those those transactions between the earth and i'll see it and she has never been challenged in other words you know you buy a por transaction that's at issue and similarly it's also were relevant whether she had engaged in trading that knock out auction off that other stuff has no bearing here because this court and caltech emphasize shade they had a loss of one hundred thousand senate but by virtue of participating in shade they claimed fifteen million dollars tax write off on their return or that such profit potential was possible and the court correctly analyzed it both parties experts testified that the maximum profit potential that could be realised the spread transaction would be one hundred forty thousand against this maximum profit potential there were a number of the first of all since the spread was transferred to jay jay took a twenty percent profit off the top so you're down t dollars for of legal opinion the whole purpose of the legal opinion was to basically say that by virtue of transferring the stock since to change you're going to get a stepped up imposition of a penalty well is it fair to say that these two statutes read together or two statutes can be read together that the applicability of any penalty is determined to the position your honor section sixty six sixty four doesn't simply apply to partnership proceedings section sixty six sixty four has been in the code for years and years and years and it relates to all kinds of proceedings that relates to ordinary fish and sea proceedings that don't involve partnerships they might involve individuals they might involve corporations but any kind of you know proceedings where where at penalty is inserted under section sixty six sixty sixty two a defense to the penalty you know a reasonable cost how not to could be a third so sixty six sixty four applies to many proceedings with not proceeding to the partnership what so then you have a partnership love their right to the proceedings of the partnership or well they can assert a defense but they asserted in their individual partner level proceeding to try issue is that each partner might have a separate you know defense in individual proceedings for example many time promoters would be a member of limited partner just as other partners and the promoters reasonable cost would be a different defense for example than the balance of an individual partner and so it would make perfect sense to have tried an individual partner seedings congress in one nine hundred ninety seven when it amended the tougher statutes made it quite clear that perk that adjust that penalties relating to adjustments to partnership items are to be determined at the partnership but it did not at the same time to state that the reasonable cost offenses are to be determined at the person or ship level when in fact the legislative well if one partner succeeds in his defense the partner of the penalty would not be imposed as to him if another partner the defense fails the partner is to impose the penalties imposed as to him again nothing is really imposed at a partnership level a partnership is a pass through and city so everything the tax and the penalties are imposed really at the individual well but congress made the determination that issues common to all the partners should be determined in one proceeding and that issues that would be individual and individual partners would be determined at an individual proceedings and their return it also includes the fact that accounting practices then the legal factual determination step under why the determination of the determination of i have said income credit without penalty applies because of reasonable calls and in the meantime you drop down and have a partner level of affected i don't perceive that those are the there were actually facing three potential proceedings here but in this case you don't have that problem and the that this was the partnership items in the under the radio when she said the economic substance was but if you look to do the basics and you look to the government's position below and you look to the government's position in every other case doc and guston the outside up into the partnership proceeding then it's all a return of the individual part it's this regulation would be invalid by application consistent with this court's opinion in national westminster horton homes and in the  proposition that if we're talking about m p h for the utility grids it's good to have the agency making those decisions not for what the d c circuit said in murphy is in matters of judicial jurisdiction the agency doesn't have