the with respect to a stock issue and i think it's it is helpful to understand procedurally that this issue really never came up in the district court at all it was not the focus of the debate or the  is often the case that shareholders especially and closely held corporations are employees mr bush in fact was an employee he and he received this out as an employee in his capacity as an employee that salary was reported on his individual income tax returns year after year after year and went from relatively modest to quite substantial the purpose of the with respect to its stock language is to that that's the meaning of that phrase there is no more significance to it and in the vast majority of cases involving controlling their holdings of course corporations including this case until we got to the and back part of the case it's because he also for example gave coffee six hundred thousand to one thing couple million maybe value on a couple of the other businesses so i'm saying if you add up all of the numbers that are referred to you don't because mr boehner is taking his own money and giving it to his wife giving to his wife and in return the stock comes back into the corporation and the stock now has that basis attached to it all can sell your honor is that had this if you've been raised and were to be raised again were faces was an issue that money there is a there is a credible argument that that money can be based i can't say for sure water business which was valued in the record there was a several different values given to it that i think the highest of them was two point one two point two million dollars there was a copy processing wholesaling business which theory of trial was that there were various kinds of money that mr ball where he had received in various ways over the years that he didn't report it wasn't just like you got ten million dollars one day he didn't report there was a couple million dollars an employee because there was evidence that he was an employee and that the money that he received salary was reported on his tax returns and therefore was not this money that we're talking that evidence is sufficient under  stats therefore since the divergence did not relate to his employees status it is reasonable to conclude they related to his shareholder status or were made with respect to his stock we do not consider it arguable that mr cru his status as an individual since his ability to obtain corporate funds grew out of one of his positions as a corporate insiders he received the funds of the corporate insider and he diverted them to his own use as a corporate insider if he was not acting as an employee he i have not seen a case with any issue has been even significantly debated were the circumstances are like this where there's not a where there's not proof that the money came to the shareholder in some other fas that is relying on the theory of constructive return of capital he says that because the government gets to argue in cases a constructive distribution of respect to stock theory that the defendant as well gets to argue a constructive just your vision with respect to stock because he is a controlling the transaction that he chose and cannot read through actively change the tax consequences of his transaction in this case i don't think in any serious debate never reported as taxable income after the fact that the defendant is arguing that these are constructive dividends excuse me constructive distributions with respect to end of the fiscal year of his corporation that there had been any evidence that this was intended to be a distribution with respect to stock issue the property in fact his but he did know this theory for the return of capital was one of many made by the defense it was not the his primary argument as i understand it you know even before the return capital argument was rejected was that these were corporate funds he held as an agent in the spending for corporate purposes and you know i think if you look at the proper which is documents for thirty eight you see that i don't think that it's inconsistent with this with the footnote to state that the basis is not waived in this court the basic argument was not needed in the supreme court but that does not prevent this after this i mean there is no are there was no discussion by the defendant that these added up to ten million dollars i mean we have that now so all right but so i think you look at this record and you say you know it is automatically just of easing with respect to stock if you're controlling shareholder unless the shareholder wants to make it something else and he says i didn't try to make it anything  one way or the other and in cases in which the taxpayer is not characterize the transaction i don't understand why the taxpayer doesn't get to argue about the form of the transaction or how he characterized it or i don't think there's a case of  to to characterize the transaction to his advantage in accordance with the economic realities and that's what we're talking here just saddened and no more council talk about a presumption that we're asking for some sort of a presumption th shareholder and it not being sought because the salary again separately accounted for as factors and your honor i can say for having looked at a lot of these cases i don't know of any case anywhere that says that that is insufficient on with respect to stock and there are many cases that treat just that type of showing as sufficient as as a stablish in that condition almost invariably without even find it necessary to discuss