man of my argument and address your questions on that i'd like to address of point at page sixteen of our reply brief just for a few minutes if you'll permit me i paid sixteen we make the  point that general interest income expense of a consolidated parents is reported and netted on a single consolidated return and that includes general interest income and expense  such as overpayment interest and underpayment interest received in pay that year yet the government takes the position that that refuses to apply section sixty six twenty one to that very same interest to determine the rate there's no disputing that the interested issue here was reported on the post acquisition consolidator return of energy east that's supported not only by our brief but by the government by the c f c opinion and the government's own brief for example at pages forty seven of rep knowledge is that it wasn't until after consolidation that  that that's what the statute requires a statute was purposely directed to any open periods and so that would include the interest that occurred prior to when the when the part of consolidation and just as a point of illustration or are the the fact is that it's both of these these under payments over payments to the interest on these over payments and these underpants and overpayments were determined post consolidation it wasn't even known that these even existed these over came under payments even existed in supposed consolidation one of the things they would determined after the holiday should yes around and then put the payment occurred before well the payments on the interest occurred afterwards and in fact they were they were reported on  consolidated return of the taxpayer and a g east the payments for the interest and and in fact on that same consolidated return the post acquisition to sell their return actually that the the interest is net  here so that was awful thing kara post consolidation it was even known they existed until after consolidation but the overpayments which you're trying to obtain credit were paid for the consulting they were made before consolidation yes right and those were the ones or the but again they weren't known that they were over payments but you're attributing the interest for those over payments to the under payments which might have been required to be made later but essentially the overpayments which generates the in the interest would be before the consolidation well that they originally yes ryan but again these are balances recall so the interest runs on the bouncers the interest was continuously running both before and after consolidation and interest goes back to the date where the payment was made even if it was not known that it was an underpayment or an overpayment correct yes but just as a point of tax was that these are cruel base companies so it's to protect purposes they're actually considered to be a prude as of the time of the year that they're determine what's what which was a consolidated tax year so yes you calculated as if it was running from the date that the from the tax year that it originally arose but these are cruel based tax year so in that for tax purposes it's considered to be accrued for tax purposes the tat of the tax year that th you know some of the balance as we as we point out at least in our in our alternative argument some of that balance for the post consolidation period was when the com companies work consolidated so at the very least it should be considered that that there are these companies were consolidated and one in the same company for that post consolidated time period remember the statutory purpose and it really should be lost sight of is that shouldn't the energy east shouldn't be having to pay one rate of interest to the government while it's got it being charged and entirely higher rate four point five percent generally higher rate for the interest that it's paying the government on the same amount of consolidation and they're paying differing differential tax rate the true reading the same tax payer language writers you know you're on i don't think so because first of all the term anything any period is followed by a clause and that any period covers the whole costs and they are attacked they are taxed the faint act there within that any period which is specifically of one of the the period seven ninety eight you know i mean what when it was when the underpayment was calculated and do what they post consolidated year i understand but it was doomed from pre consolidated it was due based on the fact that there was a there was a difference in  payment from in back in ninety five ninety seven yes that's you know i'm sorry for energies that was i guess ninety nine ninety nine yes around but the point still remains that those taxes would not be due from the would do from the subsidiaries operations in the early years before consolidation well they would time spirit yes you're out of the well they were the taxpayers back then but the there's there's nothing in the statutory language that suggests that we have to read into the statute the words rise and made in terms of the when these under payments and overpayment balances originally occurred to talking about serious the very language so you're this comes down to a medical analysis but where it says by the same taxpayer you're saying that that modifies any period in which interest is payable or allowable as opposed to modifying the under there closing comma i mean we don't we don't break up that this is a poorly written sentence obviously but if i mean these are not the clauses are not separated so it's difficult to determine what that by the same comma from the word interest all the way up to the word title for any period so it's trying to i think you need to read the words within that clause in the context of the for any period  that's one point the other point which i think you're getting at is the same by the same taxpayer and i think you have to really look at it in terms of what is the statute trying to accomplish the stop statute is trying to accomplish interest netting interest netting so it's talking about interest the whole purpose of the statute is netting it's talking about periods of tax overpayments and under payments interest on i should say interest on overlapping periods of tax overpayments and under payments that's the purpose so to read it as you know the last antecedent yes it can refer to the last word but it also refers to the last phrase or clause and here if you want to harmonize the statute and get to what the congress was trying to get at which was comprehensive netting to will that make a difference situation i think that's what the government's answer we don't see that as being a material difference that the same rationale ship fly situation so you're saying that whether it's one taxpayer or two tra the time when the the balance is originally a rose should not be material if the the the time that the interest is determined and then when later when the interest netting claim is filed there they're all part of a single group and they each have a claim the interest that they the interest income and expense is all reported on a single return of the taxpayer and the taxpayer energy eat under it e n by the way not under the it's all attributable to one company so whatever belong to the subs belong to the parent and that same applies in the merger scenario but they're trying to make a distinction in a consolidated group cont we're not doing that before prior to the effect of the of the statute and there's no there's no i mean the government doesn't deny that either you're so you're not trying to reach back to no no you're on before one thousand nine hundred well the  subsidiaries had merged that that would make it worse with each other was that your question because those both made overpayments here hypothetical right if the two subsidiaries wanted the overpayment contemplates is looking at whether they were separate corporations at the time those under payments and over payments rose not the post murder situation and i think you know you have to look at who did the underpayment the overpayment belong to and they belong to two separate entities so i think the government i think the government's answer that question would be no that wouldn't be a different case because the taxpayer that had the overpayment and the underpayment were two separate entities at the time that that payment arose and i think if as we explain our brief the period well i think that any period means that you know assuming that you have the same taxpayer making an underpayment and an overpayment the entire period of the overlap is the extent to which there is netting wouldn't say that part of the period of overlap and i you just the taxpayers in arguments highlight the confusion that comes up if you say if you the same tax payer any period because they posit in their brief these alternative arguments where they say well maybe if they became the same tax payer  by the time the netting claim was filed or maybe it's after you know maybe it's after if they become the same tax payer assuming that's possible which we don't think at the so it is within the same tax payer while the relapse was still going on is that enough and then there's a question of well then do they get to net for the entire time of the overlap or only after the supposed acquisition period so the tax payers reading the statute to try to apply any period to the whole paragraph really creates a r if you figure everything out you determine the taxpayer had paid more than they owe and underpayment interest is that when the returns filed it's generally whenever you're on the curves it's generally when the return is filed her and there are you know maybe some earlier and what happened and what was interesting well the problem is that's when the taxes do not the tax is due when the ever came it arises it goes on the books basically as an amount that's due but it's not always known that ever payment was actually made or the new owner payment was made until later because  you might discover that on audit you might discover it you know it might not know until litigation was resolved with or there was an under payment or never payment and then basically what the tax law does that goes back and it says after you litigated and determined that was a that was a back to the taxpayer is the tax goes back to when you return it was filed with the interest only accrues later well no the interest would accrue from  are going back and saying interest accrue from the time which should have been paid which of the government of the taxpayer when the return was filed it's just that the determinations might happen later because there's a dispute about whether the tax was due or not th terms of clarity it may not be your honor but i think the government's interpretation that was adopted by the federal claims offers a great deal more clarity and i think i would just emphasize here that this is is a situation where the taxpayer is trying to go back and say at the special rules retroactive application of section sixty six twenty wendy and this court held that it was a waiver sovereign immunity that had to be strictly construed in the government's favor and i think that is not a very different context really that was with respect to this one special rule that allows the additional right to to prior recovery that's very different than saying the statute itself is a waiver of sovereign immunity as may well i think there are other provisions of the other parts of sixty six twenty one  that provide for interest against the government and that is that the general waiver sovereign immunity but terms like this that say when there can be an additional recovery define the terms of this but waiver and the supreme court's repeatedly said in this court set of fannie mae that when something  the terms of the waiver i think that that is part of the language governing a waiver sovereign immunity and it has to be strictly construed and particularly in the interest context with reporters that in cases like  library of congress first a show in new york around which are cited in our briefs that interest there's a there was traditionally no interest rule so when congress has waived immunity to provide interest the terms of that waiver have to be really strictly construed and of course a tape  particular care not to go beyond the terms of what the statute allows but i look at the legislative history of this statute this really was intended to be remedial to to strike a balance of fairness that that congress perceived didn't exist under the current code well i think congress over a period of years had asked the they are us to try to do do netting in those conference of means as that was possible under existing statutes and having determined that their us wasn't capable under existing statutes of doing enough an act of the statute that was intended to directly address the question and i think interpret it more broadly than what congress allowed for gets into seppi on congress toes with regard to the scope of the waiver and i field and they don't get reviewed at the highest levels like revenue rulings and revenue procedures do or are certainly not to the extent the treasury regular so you take the position you would have consolidated parties can never be the same taxpayer and thus i think  that it's not clear that they could i mean i think there are and i think the same taxpayer language really suggests that they wouldn't unless the sigs axing consolidated group had the overpayment and the same group without changes are used without any essential changes had has the underpayment because i think when you start looking at you the theory that comes across in these two council advisories as well there's a treasury regulation that says that the underpayment will belong to the group because everyone's example a situation where the consolidated group is you know one hundred corporations and they have an underpayment that belongs to everybody and you're too if you had one little corporation that's like a teeny tiny percentage spin off and be a separate entity and it has an overpayment then it could claim the netting and then in year three the big group has an overpayment and says we want netting for that of underpayment and we're the ones that confusion and the infighting between the subsidiaries that could come out as corporations reorganize and sped off really dictate that this is not something that is within not administrative practice and in fact with overpayments their us just pays the over the group well that may be with respect to the underpayment the same doesn't follow with respect to ever payments and i think you know the confusion associated with it not necessarily working both ways just raises the question i mean that's not the case this court doesn't have to decide it here because in this case the corporations were entirely separate when the overpayments arose and when the end of payments arose and there was never any sort of merger here the corporations became remain separate entities with separate taxpayer identification numbers and in fact you know i think it's important point out too that the statute the netting statute applies to all taxes were used consolidate filings how many returns applies only to income taxes so this was you know this is it creates another avenue of confusion to get into decide the broader question i don't think is necessary in this case but to total twenty six well i certainly will be the first one to say but are there any other questions a when i was giving your at my answer about the merger scenario thinking for example in terms of age forty nine and fifty of the government's brief referring to the merger scenario and awful referring to the subsequent mary mentioned with the over them not issuing regulations to to to implement comprehensive netting they finally had to implement sixty six twenty one d another decade later we're here still here still no regulations you know that there's an inconsistent patchwork you of the legislative authority to implementing consolidated regulations to the i r s and that's what that's what has they've been asking the iris to do for years and years and then it's to cassio's who can say th