the bottom was i mean i don't want to be wrong about this but it's simply the truth that the great majority overwhelming majority of the funds paid from the customers to get pay was to be held temporarily and then turned over to the united states government was tossed around  once well the what that means that is when all those big thirty two thousand two hundred ninety seven dollars to get pay you're saying that net pay could have taken that money invested in the stock market or gone to the racetrack and that would have been perfectly fine the case that if we accepted your aggregation theory would render the statute another thirty because as i read your brief sure saying that there could be multiple transactions not only multiple transactions to one credit but two different credit payments on the hundred dollars to one thousand different creditors you can abrogate that and say well that's one hundred thousand dollars that's a robber the five thousand dollars statutory with it and you're saying with those my name is i don't deal in behalf of the united states mr mr deal with me ask you right up front i don't know maybe i missed it but i i haven't seen this case doesn't perhaps right they said really substantial implications given how many of these services existed a and how many businesses especially small businesses are outsourcing this kind of it would have very dramatic implications every time if the trustee is right then every time a payroll service company goes bankrupt the trustee will be obligated to undo the last ninety days worth of business and and also importantly with respect to the people who contracted with this business they're the ones that are going to be on the hook when their taxes don't get paid so i think it's really important to be clear about whose money the trustees trying to collect here that ned that was actually going to be my former question and i have to stress that question in chambers because it doesn't figure in there wasn't really any reason for to figure in the briefing but all of it lee for purposes of the service what happens with respect to these individual taxpayer slash employer accounts where the money  with respect to these five employers who authorized someone contracted with someone to make their tax payments were them and money was dedicated with that very purpose but never reaches the service where the service records show with respect to these five work if the money was never turned over to the service in the first place then when the president there yeah yes yes on and of course the money was turned over here but but i perhaps i should have asked the question factually in a way it occurred here if it goes back from the service into the debtors trust what are the implications appeal that the funds that were given to first pay by clients were held in trust and then whether or not they were for a trust fund taxes the agreements themselves were saw each that the clients who gave their money to first pay never intended first pay to be able to take it to the track and  this case that we didn't have in the first take case is that there's sort of a disclaimer at the end about not intended to fiduciary relationship right i think that language is in that is in the contract because under section thirty five zero four the internal revenue code payroll service providers can express the contract through or to assume responsibility for making the payments now that doesn't meet him the employer doesn't become wible but construct of trust as a trust under which you know it's it would be unfair to permit net pay to pocket and we've been talking about unfairness here as a one in the beginning of your argument yes so certainly certainly that would applicable i think we have even more than that the problem with constructive trust is that obligates the government then to come in and trace and say all right the money in this particular client  the money we tracing problem here there isn't a tracing problem there is no us troops now we we can pinpoint exactly where the money came into the account it without any count five days later just per usual business procedure i have a tracing problem in this case you're arguing to us that the prefer course would be not to decide that this is a constructive process because of the phrasing problems that may arise in other cases preferred course would be a resulting trust which doesn't necessarily feature some of the same tracing problems in other words this isn't the client's intended whether or not there was this disclaimer at the end where the client's intended was when they gave the money to pay yet they would pay the payroll taxes and that's what happened here it was so then why right so why don't we just say  question is this it was all to interest is it a constructive trust is it an express trust will seventy five zero one would not necessary so seventy five zero one imposes a trust with respect to amounts withheld from employee paycheck but does it only get you a so far as that i mean isn't the problem that so the five zero one only takes you so far but that you need additional or equitable principles to flesh out the nature of that trust in general yes because for so for the for smaller payments we don't know what portion was trust fund under seventy colorado one word on trust fund and by non trust fund i mean the employers own liability the pleader portion of social security we don't we don't know we know with for all this capital that they paid entirely a trust fund liability but we don't know with respect to the other force so you do have to reach the did miss miss de minimus transfer exception if you're proceeding only under seventy five watt and that's so so that's why i say it's that's why we read with beef the state law trust professional employer organizations where they kind of do that and it's there were congressional hearings about these kinds of situations that the payroll service provider the professional employer organization the agents under thirty five zero for a sort of three different kinds of  complicated requirements isn't that the truth it seems like a lot to put on a small accounting department to me five hundred companies doing this sort of thing they generally handle their own pa payments i would mention it even if that weren't the case making tax payments is what payroll service companies do so it certainly was in the ordinary course  of the business or financial affairs of net pay any eye rests for me it's this kind of three party arrangement this is fairly typical and we were the only party to introduce a evidence on this point so we do