it please the court arthur catterall of the justice department all they have the commissioner and i'd like to reserve five minutes for about an with that's all right and the two thousand and three amendments to the regulations under i r c section four eighty two two positions the i r s had taken under the then existing call sharing regulation first that the term costs includes the cost of stock based compensation and second that a qualified cautioning arrangement between related parties achieves an arm's length result only if the parties agree to share all development related costs in proportion to their anticipated benefits from the arrangement taken together these amendments have the effect of requiring related participants in a qualified cautioning arrangement to include the cost of stock based compensation in the cost sharing pool is it in order for the arrangement is that your position that that you are permitted by by the statute to do away with the comparability analysis for all of these cautioning arrangements regardless of whether they have to do with intangible property the  well the i think by definition these cautioning arrangements involve intangible property ok so are you saying that you now interpret the statute differently than treasury once interpreted the statute that in other words there is no obligation to look only at arm's length transactions well i think since one thousand nine hundred six i mean that's that's when the language of the statute changed  and you know by its terms the commensurate with income requirement requires you to compare the two sides of the related party transaction as opposed to comparing it with an with an uncontrolled permits that position or i think i think i think both parties agree that the statute is ambiguous you know it doesn't even say the words arms length standard now we concede that the arm's length standard is implicit in that first sentence but i believe both parties agree that that statutory language itself is ambiguous so is it that you think that the ambiguity is what the second means i think there's certainly some ambiguity as to how the you know how do you harmonize the the second sentence with the arm's length standard that is implicit in that amendments presupposes and imperishable the terminations on treasury's part that unrelated participants in similar types of arrangements would agree to include the cost of stock based compensation in the cautionary pool now how did the tax court reach that conclusion it relied on its holding in xilinx that under the pre amendment regulatory scheme application of the arm's length standard always required an analysis of what unrelated then as you move through the briefing begins to feel like what you're saying is that we really don't have to do an empirical analysis because it's a policy of policy based evaluation of what the statute she allows us to do i don't believe we ever said we did an empirical analysis i mean treasury from the from the start didn't think it had to do an imperial analysis and you know that's why the tax court's decision was was so easy for them to make because they started off on the wrong foot with this you know this imperiously based state farm analysis but again what what the error that the tax the question or that's what the court should have examined is whether treasury could alter the legal landscape in that manner because the treasury could do that then it necessarily follows that the court's in pyrrhic lead based costs without regard to evidence of whether unrelated parties would agree to share a particular cost could be reconciled with the more general regulatory provisions describing the contours of the arm's length standard those regulations then and now describe the arm's length standard as follows a controlled transaction meets the arm's length standard if the results of the transaction are consistent with the results that would have been realized if uncontrolled tax payers hadn't gauged in the same transaction under the same circumstances that's in dash one of the regs and that provision goes on to state that whether a transaction produces an arm's length result generally will be determined by reference to the results of comparable transactions under comparable circumstances the tax court in xilinx seeing nothing in the regulations expressly stating that treasury could prescribe an arm's length result without reference to what unrelated parties do simply declined to infer such authority from the language providing that the arm's length result is generally determined through comparability and else it was this court went a little bit farther didn't it i mean it said that two different pieces of the regulation and one says do a comparability analysis and the other says you don't have to and that was an ambiguous lee confusing and then the court had to choose which one it thought the regulation really required and it said the first is what's consistent with established practice and also said a few things like what's consistent with the purposes of the statute and with our our treaty obligations right right so given that the court said that why isn't the decision here controlled by xilinx because treasury changed the regulations that were at issue in xilinx and the and the real issue should be was treasury authorized to do that well the statute is the same both at as a designing case and as of now crack right and what treasury did is it amended the regulations to make expl that the the commissioner had the authority to interpret for eighty two to along and i think arm's length standard i mean you talked earlier about it being implicit but it's not and i'm not in the right the statute the arm's length standards not even mentioned in the statute but you have to look at the history you know going back decades plus you know the arm's length standard whatever it means  in all of our tax treaties and there's just too much history so given that then what was the permissible limit of limiting the arm's length standard for the commission you know that that's that's certainly one limiting factor but but it also says only in connection with transfer licensing i mean how is that the same as the cost hearing arrangement for the development of intellectual property as opposed to  cot sharing arrangement for the transfer or licensing that the phrases expressly used in the statute well i mean we don't think there's anything in section forty two that would preclude a broad interpretation of the word transfer that would include the relinquishment of future exploitation rights pursuant to a caution agreement that's how the tax court interpreted the word transfer in the xilinx case and this court on appeal in xilinx did not even mention this transfer issue in either of its opinions eva the party said brief it but even if the word transfer were deemed not to encompass cautioning arrangements there's nothing in section forty two that would compel an interpretation of the commensurate with income requirement as precluding treasury from extending its application to caution arrangements you know wouldn't your argument taken to its logical extreme do exactly what you just told justice thomas can't do which is it would say that you could effectively do away with the arm's length standard because you could just say you're using that commensurate with income standard in all circumstances now because and again the issue is what does the arm's length standard main and if the arm's length standard is separate and distinct from comparability analysis which is sort of a means to an end so that that when there's a caution erring arrangement you look soley at the second sentence and do the kind of analysis that you did in this case right and we get that from the one thousand nine hundred six conference report which specifically says you know we are aware of cautioning arrangements and we think that's a permissible way to divide the income you know provided that any such an arrangement has to reflect the purpose of this amendment and you know reflects the actual economic activity of each party if you got it was evidence of non related e regulation sets forth a specific rule that says you know a qualified cautioning arrangement will achieve an arm's length result if and only if  it complies with these basic economic terms where the parties agree to share all development related costs in proportion to their anticipated so you know of or have to do a comparability analysis again for these qualify cashion shang or that is correct now if that's the case given what we defined the treasury policy to be as a xilinx are what this core defined it to be as of xilinx why isn't that a change in policy under under fox television that requires us to carefully and analyze the way in which you implemented that change well because i had the i r s had taken the position since at least as far back as one nine hundred ninety seven that that in the car sharing context you know all costs means all costs and that's what the one nine hundred eighty six conference report said and that's what we're following and the fact that you can come up with evidence that shows that unrelated parties in similar types of arrangements would not agree to share the cost is is irrelevant in this context it's an arm's length and c comparability don't go hand in hand that you correct that's that's yes they did not i mean there is certainly you know comparability analysis of this is a very important means to the end stat that you only use comparability for a contract for an agreement not to cook not not related party greenman if it follows the economic realities set forth in  second set right but again in that type of agreement you would follow the comparability but there aren't that well the only that you decided as a matter of policy that these transactions are not comparable and therefore you're not going to do a comparability analysis on the car sharing or in their inherently not comparable i mean that's cargo absolutely absolutely  a forty two applies to caution arrangements correct sure and it's just you know it's just how do you harmonize the commensurate with income requirements with with the arm's length standard and you know we think you look to there's no better guidance and that one thousand nine hundred six conference report that says you know you can go ahead and keep doing these cautioning arrangements if and only if meet you know they follow the purpose of this legislation and then the report goes on to say what that means and that's you know that's exactly that's the case why didn't congress want to mend it for you to just simply use the second sentence and not even bother with the first sentence well you know if it was legislated against the backdrop of knowing that comparability analysis had always been used that's a good question and i would venture to guess that  congress has to choose its words very carefully in this context precisely because we have all these international tax treaties that are rooted in the arm's length standard so congress you know is not going to just abandon the arm's length standard and so you know i think that's why you don't have a clearer statement because they didn't want to scare off all of our treaty partners who might think that hey everything we've thought was possible for all these years this is out the window which is not the case but i think that's why congress  your words not mine but i mean on one hand the argument is you're saying of course the comparability is not synonymous with arms length but doesn't your argument then depend in this context on saying that this commensurate with income test is can be synonymous with arms like yes yes and i think if they're kind of different concepts i mean they are and i know it's and that's a that's a troubling part of this case is that you don't the type of analysis you're doing under the commensurate with the income test and you do another context is not the same thing as a classic comparability analysis and i think the way we explained it in our brief is that in essence congress  is if an alleged comparable transaction does not produce a result that is consistent with the commensurate with income requirement then it's not comparable so and the legislative history goes in depth about the lack of reliability of allegedly comparable transactions in this in this area and so i think this commensurate with income requirement it's basically a check in this area of intangibles and i think congress is congress has thought was that there was the courts were placing too much reliance on allegedly comparable transactions that were in fact not comparable thank you council will give you five minutes rebuttal and put twenty five minutes on the clocks will equalize the time somehow magically turn that into a rule that says they always have to share it because in enforcing a statute and a statute that was not changed by the one nine hundred eighty six amendment that implicitly incorporates the arms length standard to achieve the purpose a little close sorry about that to achieve the statutory purpose recognized by the supreme court and still recognized by the treasury's regulations that the purpose is to achieve parity between controlled uncontrolled parties now the new position seems to be this is not a position it's anywhere in the preamble to the new position seems to be that the addition of commensurate with income has completely wiped away the arm's length standard not apparently as applied to the transactions actually covered by the text of that amendment which our transfer says is judgment only pointed out but but but transactions that aren't even covered by the tax but seem to be addressed by the legislative history on those on those all those apparently alone i don't see how their logic would be limited their convention with income wiped out the arm's length standard and took all the arms like elements out of it i mean it's you can you can talk about doing an arm's length analysis without comparables but if you're looking at what arms like party do would do and you're not looking at what they actually do and it's not arm's length anymore it's just that it's just words on a piece of paper and i get a few things out of the way they want your position do you agree that the statute is ambiguous about as to whether or not forty two implicitly incorporated into it is what it means to place controlled uncontrolled parties on parroting that it unambiguously requires a comparability and now i think it is unreasonable to say that it does that it requires anything else now i look at it and just say that clear reflection of income between four and uncontrolled and so i've got to control the party is reflected by anything other than uncontrolled party practices something that is outside the statute so i think logically yes it is  was what congress said it was that and what it said in legislative history and the plain meaning of the statute which is that you essentially have a look back and you can make the arrangement between parties commensurate with income which requires knowing what the income is in the future and that's that's what the legislative history said they said the problem is people were getting by with with comparable transactions that were not really the same type of transaction and that undervalued  you come back and you look and make an adjustment based on what the reasonably anticipated benefits what what an arm's length party would have done had they known how profitable this was going to be and that's what the regulations would agree that to the extent we found any ambiguity in what congress intended by that amendment that that the treasury would have the authority to regulate to fill that gap or to resolve that ambiguity only and only if it's reasonable your honor and i don't think it's reasonable to wipe away the arm's length provision for a number of reasons among them among them is is that the treasury has said all along they did general goal the commensurate with income standard is this isn't the white paper to ensure that  so i mean part of this that you're to goes the other way you want to avoid double taxation on one hand on the other hand the unrelated parties maybe that the only way to get parity is by allocating these  costs well you allocate them the way unrelated parties would allocate them that's the only benchmark that congress provided commensurate with income indeed indeed the very regulations that tell you how to allocate which would be the dash for  but that would seem would give for the parties not parity because it gives the tax advantage and therefore the income advantage to the related parties vs them related paul i don't think it's an income advantage at all as this court held in  doing what the what the government wants to do now and wiping out the arm's length standard would mean that a related party would not be able to take the same deductions that an unrelated party would that's the opposite of parity and that's that's what that's what the court concluded in silence what what what we have here is an analysis that says you allocate costs under this very statute based on comparability factors and index seventy three using the best method rule which is a bunch of imperfectly based analyses but now the government is coming in and saying oh but we can decide what goes into that cost pool without looking at comparables whatsoever and they've been very forthright about that in their brief they say we don't have to look at comparables we don't even have to consider transactions in deciding what arms like parties would do but this is nothing like what they said in the preamble not only is it i mean it's not even remotely preserved under center do you have the authority to change their interpretation of an ambiguous statute as long as they do it consistent with their requirements under the a p a right now as long as was also consistent with it with the text and purpose of the statute as well then they can't they can't go beyond the purpose of the statute which is what they're doing with your position that even if we conclude that there concluded that the treasury was due deference for their interpretation of the statute through this regulatory scheme it's still your position that we would have to conclude that the scheme falls because it's not a reason to interpretation of the statute absolutely your honor it's not a reasonable interpretation of the statute because the first sentence is still in effect incremental with income not only is there nothing in the text of the amendment itself there's nothing in the legislative history and treasury rushed into the breach to say they didn't mean to do anything to the arm's length standard they said congress didn't intend any departure from the arm's length standard for seventy five of the white paper and even even now when they've come up with their  argument which says well we're looking at this legislative history that talks about allocating according to reasonable economic activity and we don't have to we can measure reasonable economic activity without it looking at all of what people do in the marketplace even that contradicts what they said in the piece of the ninety four regs that they the preamble that they cite in their brief it at footnote eleven the reply brief footnote eleven what they treasure what they said then was you know we don't need a regulation defining what reason relative economic activity means because to quote them because a transaction of arms like naturally would reflect the relative economic activity it's only now that they're coming in and saying you know what we can throw it all out the window the preamble didn't say anything like this the preamble looks discusses comparable after comparable and then makes up a comparable from from thin air because the real ones weren't helping that's it we're taking that as what here what it's treasury's supposed to do about narrow sense means i can look at this transaction and price essentially it's on all fours on every level and it's an arm's length transaction for the same stuff the same type of parties the same contemplations so whatever the royalty or whatever the other economic terms were there i can adopt that wholesale that's the binary sense and they're very rarely exact comparables which is why the regs are full of discussions of inexact comparables and you have to extrapolate and so forth but there's also comparability in essentially comparability that aside that no one ever share a stock based compensation and they didn't they haven't taken issue with the tax court's conclusion that the preamble at least did not respond in any meaningful way to the demonstrations by professors and professor green fest that no one in their right mind would share conflicts stock based compensation because it's not connected to either the contribution or the results of a joint development project so you know where they're where they're coming from now with some place entirely different from where they were at the time of the preamble where they said thirty times arm's length once buried in a paragraph in the middle of the preamble a paragraph that says arms like three times they have one little reference to measure within them which they are now saying oh  language has to mean something and say to us if it is not at least a permissible way to adjust for those circumstances in which it's difficult to define comparability and to adjust so as to make sure that income which depends on both the cost and and the income that is properly reflected why wouldn't that be an opportunity to use a different methodology it's not an opportunity to completely throw out throw out arms like analysis and want to put the statute is there congress is understood to understand what it means sentimental with income i mean that legislative history is quite clear what you do is you look at the actual income and then you adjust according to what parties that knew something would be so profitable what would they have done i mean the the issue that they're talking about and i think it's pretty clear and i don't think the government disagrees with this though they will find out soon enough is that they are looking at situations where high profit intangibles are being transferred internally in the end the compensation that's coming back isn't isn't large enough given the profitability and there's a suspicion that maybe this  when parties are entering into these agreements and you can adjust them by the ex post reality and say if they had known that what would have been commensurate with the income actually realize and so that's that's i mean i think that's not only the ockham's razor analysis economic bring how do you measure income without knowing what the cost well you know what the costs are because you better at the same way you measure everything else under section four and you to buy it with looking at what what parties how parties enter into actual deals what they count as cost what arm's length parties count as costs not what the treasury decides will be the most amenable to its to its newest policy you certainly don't do that when they don't you know even hint at that analysis in their preamble it is it is that there's there's a there's a very well defined function for commensurate with income they can they can but that doesn't mean they can throw out the whole the whole now also what what parties do you can't you can't put things in the cost pool that don't and don't belong there under arm's length analysis simply by saying in this one narrow area not that the comparables don't work that's what they said on the tax court and that's what they said in the preamble the tax court rejected that they don't challenge that now for the first time they're saying we don't even have to consider comparables now how can that be limited perhaps it can be limited to intangibles but how can it be limited to only one quarter of intangibles in a corner of intangible turned transactions that isn't even properly within the text of the amendment that you would agree though that the last sentence of forty two is not limited to actual transfers and it could encompass the cost base arrangements with respect to the development of intellectual property well i don't think that's i don't think that's necessarily true it's not what the text says i mean you can't transfer something that doesn't exist and as soon as a cautionary agreement by the time the intangible exists it's shared and it's shared and i think the what we have is legislative history saying that nothing in this act including this provision is intended to make cautioning impossible we think it should be analyzed consistent with the purposes of the act now if they said with the text of the act they could have said that but they didn't say that this seems to me like typical legislative history in tax legislation that  guidance so that isn't actually voted on by anybody and ended in enacted by congress now is a completely illegitimate i think that it doesn't change the text of the statute and it but at any rate what we have here is the weakest possible application of the statute in the strongest possible rule on the weakest possible administrative record in the strongest possible this is this is arbitrary decision making it is it's a poster child for arbitrary decision making that's exactly why we have a reasoned decision making standard you certainly can't reach this type of inclusion not even hinted at in the preamble the preamble says oh this comparable isn't good enough so we'll make one up this is what parties generally would do that's that's the wording of the preamble this is what arms like parties generally would do they would generally share a stock based compensation there's no evidence that unrelated parties ever share stock based compensation in any kind of joint arrangement whether it's a high profit intangible like the emeline agreement or something in oil equipment or anything else so how can you make a rule that says parties generally do something when they don't do it all and then come back and say you know what we were just kidding all that preamble that's extraneous language the piece that the piece that really supports these rules is our reference to the words commensurate with inc an we didn't explain them but we referred to them and that means that we can throw up in arms length standards not what they said in the white paper it's not what they said in their other regulations that's not what they said until they got into litigation they said something fairly similar  well after the well after the propagation of this rule this this is this is administrative decision making and it's worth saying that now in connection with the problem of this rule are they not they're saying that and yet they're fourteen years after the rule it's a problem that you know they're saying and they said it they said that they began to develop this argument the tax court they didn't quite have it quite as blatantly as they if they presented it now they were had they had the tax court they were somewhat more tied to what they had actually done in the preamble but now they're taking this broad brush broad brush approach wh essentially says based on a based on a statute his application to caution is questionable at best and certainly doesn't seem to be strictly covered as a transfer doesn't seem to be covered also transfer but they're saying based on that we can just throw out the first sentence now if if there's ever a case i mean if they had if they had articulated this it would be a weak case but they didn't articulate it they didn't articulate this in the preamble whatsoever it can't even shouldn't even be considered by this court this is i mean this is just this is regs they say that they take into account various various empirical factors and in fact despite what they said and what the government said and it's pretty the the regs that specifically deal with commensurate with income the notion that they can come here now with something that doesn't really even fit under the statute based on an administrative decision that didn't even hint at this this broad statutory interpretation this is is ludicrous and it  it can't be squared with congress's decision to leave in place that leave in place that first sentence and add commensurate with income not a state you know not is limiting the arm's length standard for those transactions if it done that you surely would have thought someone would have noticed and you wouldn't have had everyone from the from the secretary to the commissioner to one of the authors of one of them because prisons here are going out and saying up no it's still the arm's length standard still plies us as a new tool we do things a little differently with intangibles but the arm's length standard still applies you have to take comparables as far as they will go and it go far enough they don't go anywhere as evan seems to say in this case oh no and i don't think anyone we certainly don't say that what do they go far enough to tell you that no one share of stock based compensation ever so so that that that can't be thrown into the hospital that's i think that's the they can they can do it they can look at what arm's length parties would do in a in an a rangement that directly anticipated help profitable how much income would be derived but they can't they can't they can't just sort of make up the elements as if as if arm's length arms like back to simply didn't exist i mean that that that is not anything that is that is it that if that was what was intended that was what was intended you would have thought there would have been something you racing the first sense there's nothing that a race is the first sentence in there you would have thought frankly that they would have hinted at the sparrow internal analysis of the preamble it's not there at all for the reason it's a contradiction in terms you can't have a purely internal analysis  that is consistent with arm's length aren't slang to practice an arm's length analysis you can't have something that doesn't even look at reality to ultimately impose parity between controlled and controlled parties which you know the supreme court thinks is the purpose of the statute treasury thinks that's the purpose of the statute they haven't taken that regulation off the table all we know you know we had the last time and xilinx there was a conflict between regulations but now we know that that that principle is in the statute and the regulation can't trump the statute and it can't trump the statute even if there is a tool given by another sense of the statute to help refine arms like lyn allison certain situations where is written as if this were an a p a challenge to the passage or failure to pass a regulation rather than with a recognition that the ultimate inquiry at the end of the day is what is the reasonable interpretation of the statutory authority to act given to treasury well i don't think that's that's correct your honor the the i r s is in treasury are subject to the a p and all the requirements now there is no it has certainly been the treasury in a way that comes into play under chevron is that in order to get deference the regulation as for which treasury seeks deference has to have been passed in in a way that's a p a compliant it has to be within the scope of treasury's authority and it has to be not an unreasonable interpretation of the statutes you go through each of those steps but the at the end of the day the resolution is that because it's not a reasonable interpretation  statute either with deference or without deference you can't apply that regulation to these particular parties it doesn't invalidate the regulation as a whole obviously it's a it's a decision that would control with respect to other parties until something was was tweaked but it's not an a p a challenge otherwise it wouldn't be in the tax court your honor there's nowhere else for it to go besides a task order refund so that there's not the the steady and consistent position of the agency and the practice of parties for lo these many years has been that any attempt to make a direct challenge to a treasury regulation is barred by the anti injunction act d c circuit just decided a case the mace case this the summer motor car says and we don't have we don't have reasoned decision making here we don't have that the argument they're making and this court you know wasn't raised at all and shouldn't be considered it should be that the case should be evaluated in the way it was presented to the tax court because they've come up with something entirely new but even if they even if that new interpretation that wipes away the arm's length standard wipes away comparables altogether wipes away arms like analysis takes arm's length out of the arm's length standard even if that could have been before the court it certainly wasn't explained  preamble to this regulation it's no where there can't be found you can find arms length all over the place but what you can't find is anything that explains at arm's length has really gone it just says this is arms length it's arms length because we made up comparable we don't like the comparables that are out there in the real world even though they're one hundred percent consistent tax court disagreed with that they don't take issue with that conclusion so they don't we don't even get to share on this is it possible you could get to chevron with a similar r yeah they could they could possibly promulgated a rule that actually said what they are doing with their rationale was and you know it might might or might not be where it couldn't be on this record but on some other record it might be consistent with the with it with both  pick and choose between sentence of the statute anywhere then they get to pick and choose in adjusting related party transactions they can't say well we're going to go with the unrelated party structure and make these adjustments that based on unrelated party behavior and we're also going to theorize about something that related parties would do i mean you start with their actual related party transactions and you just bring it into parity you don't just kind of pick and choose elements are you would like to make the biggest revenue impact that's that's completely in permissible and makes code where you're supposed to take these three words commensurate with income disregard everything the agency ever said about it including now where they says it's a it's consistent with the arm's length standard and find that it's reasonable becomes arm's length standard doesn't have to include anything the eyes like standard can be satisfied without any any reference not perfect reference nobody thinks it's a perfect reference but without any reference to the actual behavior of arm's length parties this is this is inconsistent with the statute and it doesn't stand on its face which is probably why they didn't we do have a little bit of practical application or guidance as to the practical application of the commensurate with income requirement the one thousand nine hundred six house report indicated that the commensurate with income requirement would require periodic adjustments to royalty payments to reflect actual profit experience and nothing in the report suggests that this periodic adjustment requirement could be overridden by evidence that agreements between unrelated parties do not provide for such ongoing adjustments and commentators have noted that agreements between unrelated parties normally do not provide for these periodic adjustments yet we know that two years after the one thousand nine hundred six act of congress legislatively confirmed its understanding that the commensurate with income requirement is entirely consistent with the arm's l standard that is incorporated into all of our tax treaty so and again when you when you judge o'malley mentioned that you know the commensurate with income requirement has to mean something need it necessarily entails an internal analysis it looks at the two sides of the related party transaction and to say that you know that that that just doesn't mean anything for in terms of what the arm's length standard means i think you're just you're just sort of rationalizing away the language of the statute and as far comparable to cautioning arrangements between related parties and and the reason that is that is is in the  context when underlay parties enter into a caution arrangement you have mutuality of risk that is not present in the related party context and what i mean by that is that each of the unrelated parties may decide that bearing one hundred percent of the cost of its own development related stock based compensation costs is preferable to sharing such costs and being exposed to the risk of the other party stock price going through the roof so you know it may just be sort of a wash in economic terms and then you know let's just leave it off the table and that's you know that's sort of a tit for tat you don't have that in the related party context where the domestic parent knows full well that it's cayman subsidiary will never incur stock based compensation costs there is no mutuality of risk so there is there is no economic reason whatsoever for the domestic parent not to require its offshore subsidiary to share the parents stock based compensation costs and i think in in  xilinx opinion and we cite this on page seventy of our opening brief judge judge fisher talked at length about why these arrangements between unrelated parties are inherently not comparable to arrangements between related parties and you know he basically said what i just said and as far as  hyperbole and i think i mean the notion again there's there is there's a conflation of the arms length standard and comparability analysis they're not the same thing and i think in the in th in the in the withdrawn opinion judge fisher dropped a footnote that recognized that congress and regulators may have dodged a technical definition of a term that is distinct from its pla meaning and and i think the recognition there is that arm's length standard there is not a plain meaning it's a term of art and and we would submit that again treasury as the agency that has been intrusted to administer this statute treasury's interpretation is entitle to deference of what the arm's length standard means thank you counsel cases argued be submitted for decision and we'll be in recess for the afternoon