that there's a pot of money here and even if we didn't do a good job and given the value of one of the other we at least ought to get the benefit of the minimum deduction that would exist in the circumstances because everything is either attributable to the rat right or the branch correct or is that undisputed that there's a one pot and we all agree that it is attributable to either of those two to what the amount was that was paid for fist look assess that's now i think what you're referring to is that in this court the government has tried to make a new argument that some of that amount should also be allocated to something called good well which they don't re to the forbearance the attributable to the minimum value of the forbearance and that's of course the only way you can get to this to item pot is to say that the other  they made an argument that there was something out there on relating to two lines and one of their experts reports and the expert report basically said you know we don't think that they branching rights or work as much as home trying to argue here is that you always have some highness residual but well that the way you should do this calculation is to just figure out what the values are of the actual assets that we know about and then or just attribute all the rest of it well even the amount of the pot is agreed and if it's agreed that the amount of the pot reflect only these two duction then however badly we did in presenting expert testimony as to the value of the military when you started out in your argument i asked you whether your argument at least one of your arguments was that it's agreed that a certain amount of money is attributable to z's to rights and even if we didn't show how much of value should be attributed to one of the other we should at least get the minimum deduction as a result of that that's one of your arguments right it would be a fall is flawed and that's what the court said the assumptions that were made were based on a totally different timeframe a totally different set of circumstances and those assumptions were no good so is it your position that that the court then has an obligation to make to readjust the assumptions and do the economic valuation yes absolutely and even if this is out when it's your burden excuse me even if you didn't adjust the assumptions burton i mean what i'm trying to understand is you know it's one thing to come in and say these are assumptions and this is what we really think the answer should be but you didn't say but even if you think that that that assumption is too aggressive that your methodology was flawed so why not come in to the second finder of fact and say even if you like that other gesture or judge would not accept this methodology there are alternative ways to approach the ca although in fact that the posit growth projections were quite consistent with the other evidence in the record from the f c c letter from homes own projections of time from what other things were going on in the industry i think the court didn't know the problem he presented all kinds of rain to come that he did he say ok my numbers are wrong here as the government says they are then and this is the adjustment you should make and this is the number and the taxpayer does a terrible job in presenting the allocation between the two shouldn't the or under those circumstances at least say well since you well why should the answer to my have medical be not the answer because the if you will to do it for example in this case the allocation has to do with three different types of the options that happen both  court say ok there's no basis for an allocation here but i'm going to give the taxpayer the least favorable outcome here which is attributable which is to tributaries into the raft induction and allow the it's the that home should get nothing or fine and should get nothing because as you said right not only do you have to prove that there's some allocation of cost basis to the branching right but you also have to say that branch right now has been abandoned if the taxpayer doesn't prove the right allocation should the court say ok you didn't prove the right allegation so we're going to put it in the least favorable box and it'll attribute it all to the rapid auction and you get the  action on that basis on that hypothetical isn't that what the courts should do i mean i again respect we say no and i believe that the ninth circuit addressed this said that look this is not about what you know what the what right so there something so normally what you would see or what you would expect to see is the taxpayer comes then and says this is the way we think they should be it ballyhooed and the government would say that's not a reasonable valu because we think other factors need to be taken into consideration and we would propose an alternative valuation and stead you've got a situation where your argument is the government can just stand quietly and never off as as a again my colleague senator in your opening argument is a very unusual these are very unusual intangible property they are a property that are specific to their the two homes business and business model they obviously have a much better insight as to what their value is what they try to do in this case was they hit an absolute homerun into say notwithstanding the realities that interest rates were at sixteen percent  in and help the problem right and which and but the really the reality of it is is that notwithstanding the crisis that the industry was in they decided they were going to put on i was just trying to justify how they were going to allocate will that even those projections were forty percent less than what their expert came in and did four years later we now know with the benefit of hindsight looking at what they actually in these other be honored to that point because they came in and they said look we're going to assume that interest rates are going to stay sky high and yet we're going to create we're going to assume that that home is going to be to flourish in the various other states and that they're going to capture a lot of market share they're going to basically reproduce what they did under ideal situation and circumstances are they are often with the fact that the i feel circumstances or you know as i said it assumptions of the model that the model operates on are in fact incorrect then you can then just parking in different model numbers is not actually doing anything to improve the come in with a valuation that bears reasonable resemblance to to its accuracy into the realities there on the ground if you are trying to come up with a number that is as high as possible and so therefore you make all these on reasonable vista does get back to the fundamental point that actors commune with the with the burden of being able to prove a reasonable valuation and the government can't be put on that burden to come in with a competing valuation the package together in order to to make it sweet enough for people to be willing to to take them well i think the reality is is that home was in a situation that they were looking they were staring into the abyss as well as was everybody in that industry at that time and home decided that they were going to make a bet because they were playing with house mostly didn't make the kind of analysis that we're talking about here right  for almost across the board that would have meant that through the merger if they would have failed with meeting their cap or firemen so they would have been technically under physics domi if if that had happened so you have this wrapper right  them at least the minimum amount that would be yielded by putting the deduction to one box and the other let's put aside the idea that the abandon it actually wasn't available at all which would destroy my hypothetical was not i mean it was not our focus we agree with your basic approach that well this isn't just a binary allocation we have course focused on this idea that there should be that they were acquiring businesses and if they could have had a significant residual and so therefore they would only be entitled to the fair market value of each write not an allocation of a pot of money as between two but you're right with with your the additional assistance would reduce that pot of money that they would then allocate to and so but there's an important point here the important point is this is that they're saying look we've got two hundred million dollars in which the strips for insolvent and we're going to our we say that should go to either the branch or rights or afterwards if they're saying that there can be no residual which is what the government had argued pull out and then that means you know if you valued if the real if the fair market value crude no your honor we did not stipulate to the value of the physical systems we said that the value of the physical assistance is basically the purchase price which is the liabilities assume minus the dispute that they were installed there is however the fact that they have thousands if not tens of thousands of customers they've got lots of deposits they've got reputations within the state the government property numbers that should be attached to that  could well know what they mean that's the that's the that's the unique quality of goodwill and going concern to you is that it's the residual it's not it's not me it's not an independent valuation from the business that comes along with the business and therefore it is what you cannot it's it's the it's the purchase price that you can ascribe to other you agree that in the missouri court of transaction that the only is a benefit other than perhaps that's residual could well work where the rap rights and the financing the physical also added as part of the assistance package and and and i'm not entirely positive off the time i had i'd have to go back and check to see whether there was anything but again here the court  even assuming all of that stuff i'm sorry my times are bad language ok even assuming all of us even assuming all that stuff the court said look we're going to take all your assumptions with respect to the idea that you know you've do a reasonable job they missed one additional place in which we argue that they do a reasonable job of from weighing out exactly in our pretrial perspective their burden of proof we had said look there is a good will residual determine the cost that we're dealing with here you have to take into account good will in valuing the assets and that they have not done that yet so there is a there is a nomenclature confusion here there is supervisory goodwill really look at the circumstances on the ground and that saying is you're not looking at the circumstances around it's one thing to buy a start up it's quite another to buy a failing company in a failing industry that everyone was running away from correct and and  and so you know it's possible that then if you know that your expectation then would be that there would be a relatively small amount that would be allocated to goodwill been my point is only this my point is that it does cases that are but i think materially different because they're you're talking about a wholly different asset and i look at this bucket of incentives from from from this like and eighty five and all they do is move around a little in eighty eight in other words some of the set of the incentives go away but then some of them get sweeter so i have a very hard time saying that those two transactions are sufficiently materially different change wanted to exchange the raf rights because they knew and under the old methodology they were probably good enough so they negotiated a different methodology so that they would be able to book some goodwill which ended up being one hundred eighty three million as opposed like each changed shares in a company that had reincorporated in a different state then you and so you change your own shares in the old state for the new shares in the new state that's an exchange then the question becomes change says it has to be you know there has to be some material difference in kind or in nature or in nature kind is not the right word but the ways up to standard and says look in my accounting adjustments and the rapper in one thousand nine hundred eighty eight is just looking at the asset the liabilities acquired over the identifiable assets and booking that difference is good well that's a completely different methodology by which you define good will testified about what he thought were reasonable ranges for these and what's the deposit growth projections as well and for the most part mr abbas he's asked estimates came right within the range of the government experts they were in