let me ask a general question going forward taking positions in litigation before the w t o arguing that f s c should be considered separate entities from their us companies for purposes of here the starting point i think for the sixty six twenty one analysis and wells fargo is that you have two separate entities and the question is whether they should be deemed the same taxpayer within the meaning of that term and sixty six twenty one so so  undisputed on the fact that it's clear export export forward merge back together after this period of liabilities so under the plane holding the wells fargo it's not entitled to this framework is congress set up the statutory scheme that was intended to provide sufficient separation between the two entities so that it wouldn't be violating international treaties and wouldn't be subject to a w itself the european companies were getting from their own governments and so excited to impose minimal burdens and that's exactly what the united states told this court when it came in two  when the abbott labs case describing fests it told the court over and over in its brief that deficits were artificial constructs that were just about a tax benefit they were not ordinary subsidiaries they should not be  as it became relevant when the case was filed is whether export and ford should be deemed the same taxpayer within the construct of sixty six twenty one and i think in wells fargo one of the key things that the four there was affectively interest needed because there were new different interest rates for overpayments and under payments so at some point the government suggests ford is trying to get a double benefit here by being able to get the tax benefits of a  relevant under wells fargo because this court looks to the background legal counsel so what congress would have known when it legislated when it added the term sixty six twenty one d in one nine hundred ninety so fourteen years after the fis has been put in place congress uses the term to create some kind of separate structure that wouldn't violate the b t o or wouldn't be so good to the deputy or proceeding and if they weren't worried about that  then or could have just exported directly in congress could have given them subsidies directly but but they're going through some kind of legal structure so that under the guise this is going to be they are going through some kind of legal structure that's right but ask the united states told this court in its ads freeze that structure it has a different corporate structure it has a different war it has a different employer dedication number all of that stuff right that it yes it had it had a different incorporation it had a different task their identification number it didn't have any employees so i don't know that it had an employer identification number but it did have if i had different types of turns it would have to have some kind of number who was filing t a different board a different corporate structure a different can you know between that literary and the parent my understanding is that having occurs on the basis of the consolidated returns so all of the entities that are filing this issue as i understand it is that there is netting across the consolidated returns and the question here though is whether this fiscal that congress authorized is sufficiently close to ford to be effectuate it's remedial us that when your purpose was to remedy unfairnesses that resulted after congress decided to allow different interest rates and to be clear that the court looked not only at the legislative history under payments and over payments net out in other words they pay the precise amount of tax but that doesn't have anything to do with whether the same tax payer not well i think it does your honor for the scene reason that in looking at wells fargo in that in the third situation according drastic or at the time the initial overpayment was made you had two entirely separate corporations they had no relationship at all yes but at the time the i don't know which it was under or over really doesn't matter but at the time the other payment was made that they had merged into the same entity and and we looked at merger law that could conclude that they were the same committee all the time that scenario doesn't help you at all you agree right i don't agree with you and how does it help if you agreed y in wells fargo is that the time under the earlier at least energy case is that they have to be the same taxpayer at the time and overpayment is me and at the time an underpinning is made and at the time one of those two payments with me they were separate matters underscored here by the fact that it not only had its own taxpayer identification number but consistently filed its own tax returns at all times at issue in this appeal well in that it's designed to be separate in order to satisfy the what is let me just ask you a hypothetical what if instead of the this statute congress how to statute that accorded special tax treatment to a division with four  opposed to a separate entity would tend to work and so the statute said if you create a separate functioning statute or and it's a and you create different books and the like two to handle only exports so we know we're only giving you a subsidy for your exports but nevertheless you pay all your taxes under your parent company would those be the same tax payer for purposes of that  your friends argument is that this is essentially what they've done but they've twisted it a little bit to make it acceptable under the gad but it's still really just and sent to by saying and giving tax breaks to for exports and so it's it's not really anything different than that the vision scenario but it is different you are because congress could have passed the statute years ago congress for they have created a really large corporation is treated as having four separate set of eyes for cooperation without actually doing so in fact my understanding is that the current extraterritoriality income exclusion in section one of fourteen percent is a lot of those lines but in the physics statute congress require everything yes but if but to make friends or stand the tax law correctly which i do not proclaim to necessarily do if we were to find or if the court federal claims were to have found that the separate corporate structure was in fact a sham they could conclude it was a what about that last argument i like with your argument is in wells fargo we were lined up burger principles which created those entities the same you're a lying on a statute that specifically treats them different economic substance use a court nor the government has pointed to any economic substance there isn't any it was set up to have commissions flow to export and those commissions then returned as a dividend for there was no economic