court's permission i'd like to reserve five minutes for bottle time your honor is the supreme court's decision in this case calls upon this court to consider two issues on remand first and asked this court to consider the government's new argument made for the first time in the supreme court that this court lacked jurisdiction over this action under twenty eight u s c thirteen forty six and second it asked this court to consider the impact of the early isn't whether we have jurisdiction whether the district co right whether the courts have jurisdiction over the section and second the supreme court asked this court to consider what impact that jurisdictional determination has on the merits issues especially in the supreme court's words on the application of the strict construction rule to section sixty six eleven of title twenty six of the u s code on the first issue the government's argument must be rejected because as the government itself acknowledges this court held in e scripps versus united states that section thirteen forty six does supply jurisdiction does waive the united states often immunity from suit for overpayment interest actions just like this that decision was absolutely correct and is fully bindin on this panel and once it is acknowledged that section thirteen forty six supplies the waiver of sovereign immunity in jurisdiction that permits this action to proceed and then it becomes clear that section sixty six second is a separate substantive provision that is not entitled to the rigors of the strict construction rule in fact we think that the right way to understand the supreme court's decision and its decision on search are in this kind of case was extraordinary is that the supreme court wouldn't have taken that extraordinary action if it did not harbor serious doubt about the application of the strict construction rule now with respect to the a jurisdiction issue this court held in the scripts case that that thirteen forty six did wave the sovereign immunity united states sovereign immunity of sued over overpayment actions like this there are two clauses in thirteen forty six one pertains to suits for internal revenue taxes and the other pertains to the collection of any sum alleged to have been excessive under the internal revenue laws the court  scripts focused on the any sum clause and we think that the court was absolutely correct to find that that clause ways the united states sovereign immunity to suit under the strict construction rule for for over payment for actions for overpayment interests just like this the court in script recognized that any sum a very broad phrase which the supreme court referred in the florida case to a catchall phrase clearly encompasses interests in the flo case the supreme court recognized that interest was a quote obvious example of a sum and it recognized that the taxpayer was seeking to collect an excessive some when it was seeking to collect the full value of its overpayment to the united states internal revenue service hearing right now the scripts was decided correctly that yes yes you know we sort of run by you  not explicit about some things that i think must of necessity be implicit in the opinion and really i'm thinking of two things script deals with shah best saying well in this particular situation there's no requirement that the ward interest be specifically mentioned in thirteen forty six and that so because we go back to flora because we look at the card text of the internal revenue models we look at other statutes like six six one one and we see isn't compassing interest is that is that do you agree with that and it will your honor i think or is largely wrong with that and now it's partially i mean the government and scripts did make the shaw argument and the explicitly that defines that thirteen forty six a is a waiver of sovereign immunity the court also says that the question before it was quite easy obvious and quite clear this is on page five ninety two of its decision which are words consistent with finding that it does meet the strict construction rule and i think with respect to the specific the specific phrase some i think all the court had to do as it did was look to the floor decision where the supreme court has recognized that some is broad enough food interest and then the only question left under the clause that the court found jurisdiction under is whether or not the taxpayer seeking an excessive song from the iris were seeking the full value of the overpayment made on scripts the court also emphasized that the purpose of the overpayment interest provision is to ensure that the time spirit can can receive the full value of the lost time value of the money that it that it paid to the united states a deposit united states an overpayment a tax and that's what exactly what this case is about the taxpayer in this case admitted more than eight hundred million dollars the united states because united states had said in a thirty day notice that i believe that he did under paid his taxes those funds were actually used to pay for words tax liability and then it was after that point that the i r s acknowledge that ford had in fact over paid its taxes and that therefore it was intitled to money back because it  made an overpayment and the only question it's the central merits question this case is whether ford is entitle to the full value of its overpayment backed not only the principle but the interest on that as well and i think scripps helps answer that question as well because what the interest provisions are seeking to do is to allow for to obtain the last time value of its money in the law and now you've moved on to the merits issue well i haven't and i'm i'm certainly happy to talk about the jurisdictional issue further i just want to figure out where you are you're right and i think there are really three steps here one is whether or not the court should abide by its decision and scripts and we think it's binding on this this panel to whether or not the strict construction rule would apply to the construction at sixty six one one and on that i think our position has always been that once you recognize thirteen forty six as a waiver of sovereign immunity for overpayment interest claims then you have to look at sixty six eleven is a separate of sixty six eleven i think that aspect of the cases in sharper relief today that's kind of you but i'm just trying to figure out what it is we'd have to be inconsistent with right but the first issue would have to be inconsistent with with scripts to change our position on jurisdiction and the second issue which is whether there is this strict construction applying in this case we would have to rule for you we would have to rule in consistently with our previous panel decision that's right on the issue i think in the first question really that i don't take the court's prior decision is inconsistent with strip scripts directly because recognize it didn't didn't question its jurisdiction but i think one would under understand interplay between thirty and forty third argument is just the merits the third argument is the merits and i think on that the most important thing is once the rigors of the strict construction rule are removed then i think this court's prior panel decision really answers the merits question before this court i think the following just suggest trying to figure it out when i first came upon this case it seemed kind of strange that he would have one rule of rules one one way of calculating it when you going one way but not in the other way it seemed inconsistent with time value of money and so forth you explain a sort of bottom line if you accept that then you have to use something like the strict construction rule to get over it which is what we did right but now i'm wondering a little bit whether it's that and whether whether it does conflict with time government about whether certain taxes owed and it's going to take some years before it gets finally decided so you're trying to figure out what who has the money during that period right might be three years in fact it was more than  in this case ok so you've got this time period ahead of you the taxpayer is thinking i have two choices given to me by the statute i cannot pay and if i lose i'm going to have to pay interest or i can pay and if the if if i win i'll get interest right in the statute seems to set up both of those what if you had a statutory scheme where that was the case but then the government says or the the taxpayers says in effect i'm having trouble which one do opt i have an option of either one of those i can do one which is consistent with the time  or i can do the other which is consistent the time value of money i might want to take into account how likely it is i'm going to succeed i might want to take into account what i would otherwise do with that money i've got a great investment here i don't i might take into account how much interest i think i'm going to get compared to putting it in a bank ok those are the kinds of things and those things might change over a three year period so i want to i want to you know retain the option of doing one or the other in the government says in effect ok if you want to decide in a few months or half a year rather than decide for the whole time we'll give you this interim situation you give it you give us the taxpayer will give the government the money and if i win i get it back without interest and if you win i don't have to pay interest but i can change this situation at any time then when i change it i can revert back into the two options that i have with what is inconsistent with the time value of money or with an ordinary way of running government to to have that kind of an option it now you could say the option is not authorized i understand that i take that to be your position but if it is authorized i'm not see what's what's incoherent or are flawed or or or problematic about having such a interim way of determining what the interest with the longer term interim resolution will be are you with me i think so your honor in let me try to answer that by explaining how we understand the provisions to work in to be consistent with the time value of money principle first i think both underpayment and overpayment well i figure out why this position if you state the government's position this way it seems to be consistent with the time value of money because the the the the taxpayer has these three choices the taxpayer can say i opt to pay now payment pay really pay in which case i can't get it back until it's finally resolved and if i'm successful i'll get i'll get interest that's the payment the the taxpayer has a third option which is a little bit before i decide between these two options and and while i'm waiting i agree that that if if i decide to go the not pay option i won't get really interest on that so it but what i preserved by giving up that possibility is the possibility of changing what my overall interim decision will be so it's kind of like a here's something we're going to call a bond the government says and that bond is just a way of postponing the interim choice that the taxpayer and it's not as good as one choice and it's not as good as the other choice in each way there's a way in which it's not as good and the reason with what's wrong with that your honor is it doesn't  doesn't take into account the time value of money principle because when the taxpayer he's using up the time value of money conceitedly in return for the power to change his mind during the interim and the reason that the funds here were actually used to pay the taxes and the reason why that's a stretch that's the pardon me but that but that's a conclusion that sort of assumes the answer well what i'm what i'm asking is why can't you have a system where the taxpayer can go one way consistent with the time value of money and go the other way consists of the time value money or can say i'm going to give up a little bit on the time value of money in order to retain the option of going one way or the other so the reason why because of what congress has done so there's nothing unusual or contrary to the system of how people deal with money to have that it's just congress didn't allow it well i mean i think i might quarrel with whether that would be the better rule or usual or would in fact but but it wouldn't be as it wouldn't be a scheme that that's just sort of illogical it might not be the best scheme but it could be a scheme once you get to that then then then if you assume then the answer is does does this does the statutory scheme preclude that possibility and you're saying yes it does it does but but it's but the i thought the force of your argument originally i must say was that it's strange that the government would ever or the government read large congress and and agency that's carrying out congress's wishes through regulations and all the things they do it would be strange to have such a system but i'm wondering now whether it's just not a very strange system it just seems like a logical system and then the question is well is it the system or not but the but the question of whether it is the system or not is his color pretty strongly whether it's a strange system or not my making sense i take your point your honor but i but i think the reason why that doesn't work here is we know that under the system that the i r s implemented it treats the date of deposit as the da payment for purposes of the underpayment interest provisions and we know that the ira's couldn't do that unless that's the correct interpretation of the statute because congress and sixty four over forty doesn't allow the i r s to abate interest it's actually that's a whopper me that's a way of saying congress could not offer this interim choice just doesn't have the power i mean the the agency doesn't have the power because congress didn't give them language to do it in fact when they've offered this thing which is to the benefit the way i've described it totally to the benefit of the taxpayer because the taxpayer can pay the advance payment the taxpayer can not pay the advance payment this gives the taxpayer a middle choice of postponing the decision a little bit it's still that's a treasury and gets the full time value money of that deposit it would have been the same if there'd been an advance payment which was an option for it would have been the same but under our view the right way to think of the system as implemented is between deposits that are actually used to pay goes to time kind of time frame is an a to as a potential way to interpretation of the statute at the time sixty six eleven was in edited this  notion of a cash bond deposit was not in play correct you know i think i think i think that's correct although that notion goes all the way back to the older cases and rosenman and but this this what i'm trying to find out is where the you agree with the point that this scarce bond deposit is really a creation of the hour is not a creation of statute and it applying a rule of strict construction that it makes to view the statute in the in the way that would be most commonly and understood given the time fried in which we're evaluating the tab a no it wouldn't your honor here's the reason if you go all the way back to cases like rosamond at that time the taxpayers would actually put funds into a suspense account that's what it would that's what it was called and then and then the court said that they were going to treat that as a payment because at the time it was similar procedure just handled a bit differently right and what's changed is is that post dating that under the regime that now exist the cash deposits actually go directly into the u s treasury and so that's it that's a difference that makes this much more like a payment now the government has argued that it can't be a payment because there is no liability that exists when the deposit is made congress addressed that specific argument and basically negated it in sixty four or one by saying that the fact that there isn't a liability on the books when the deposit is made doesn't mean it's not a payment and so congress wasn't there doesn't that  six eleven i don't i don't think it does your honor ok i may be wrong on that but i don't think it does and zero when it sixty six eleven explorer one six four one does post eight sixty your adversary is going to say hey wait he got a whole lot more time than i did so i think we'll proceed to the other side  it please the court i'm arthur catterall the justice department on behalf of the united states starting with scripts in the scripts case a panel of this court held the twenty eight u s c thirteen forty six grants jurisdiction to district courts to hear suits against the united states like this one for the recovery of interest on overpayments attacks that have already been refunded in full by the i r s says it excuse me specifically the panel held that such a standalone overpayment interest suit is a suit for quote the recovery of any sum alleged to have been excessive within the meaning of thirteen forty six  we respectfully submit that the full court should reconsider that holding in order for section thirteen will court already say they didn't want to do this i'm sorry in the i'm back court say they didn't want to do that already on case or not write scripts predated this can understand that i'm sorry i didn't understand your the court is set at least one opportunity to does that whether whether it was in scripts through this case whether not mistaken you didn't rai's the fourteen twenty nine or whatever it is forty nine one argument but they raised the thirteen forty six argument didn't they  right they they argue that thirteen forty six rather than sixty six eleven or that fourteen forty six is the only applicable way or in the court you know the court's refusal to grant bok review must be taken for something whether it's you know whatever it may be that i don't think the court was presented with the issue of whether it's thirteen forty six or fourteen ninety one i think the court was presented with the issue of whether thirteen forty issue you would agree that as a panel we're bound by scripts or the scripts is somehow distinguishable absolutely no you are bound by script so you're right now suggesting that we suggest to the full court ok week i think we got the idea that he would like us to ask the the full court to do this but that's sort of a secondary request on the list my colleagues disagree maybe you could go on to the other i mean if you didn't it's controlled were controlled by a really we can't in order for thirteen forty six to provide the necessary waiver of immunity to suit in this case it must do so on ambiguously and that's without regard to to the no interest rule of shaw that's just that's just ordinary sovereign immunity principles it has to be unambiguous and it's difficult to see how the phrase any sum alleged to have been excessive constitutes an unambiguous reference to overpayment interest you know obviously when one seeks additional overpayment interest from the government you're not alleging that such interest was excessive you're alleging that it was  insufficient and the scripts panel reasoned that attic a claim that the government paid insufficient overpayment interest is simply that the negative formulation of a claim that the government retained in excess of some you know whatever the merits of that reading of of the term excessive sun it can't be said that that's the only permissible reading of the statute and by definition then the term excessive some does not unambiguously encompass suits standalone overpayment interest it's like like this one so that that's that's the point the first states that an example of any sum is used in section thirteen forty six a one would be interest and we demonstrated in our supplemental brief that the floor court was referring to underpayment interest interest paid to the government which a claima under section thirteen forty six will obviously allege was excessive and all you have to do is look at the very next sentence of that opinion where the court says quote and it is significant that many old tax statutes describe the amount which was to be assessed under certain circumstances as a sum to be added to the tax that's a reference to underpayment interest not overpayment interest so we don't we don't think that flora supports the exercise of jurisdiction here moving on to to the second point well and else and also just to make a quick point that in the event that the court were to reconsider scripts on bond and in fact over rule scripts ford would not be left without a remedy because there's this provision this ploy mean that you think that your othe merits of your position are weak when you don't have the strict construction argument that no we are we are following the supreme court's direction to to you know to to flesh out this now we realize we're giving up a win if you know if if the court agrees with us so but this is you know this is what we argued in scripts we we never you know we continue to believe that scripts was wrongly decided and so now that the supreme court has put it front and center when we're making the argument again but then you're right that there's this remedy under twenty eight u s c six hundred thirty one where the where that the case could be transferred to the court of federal claims and so forth would not be left without a remedy now regardless whether the necessary waiver of immunity to suit in cases like this is found exclusively in the tucker act or is found also in section thirteen forty six a one i r c section sixty six eleven must be construed narrowly as a separate waiver of the government's immunity from an award of interest and as this panel correctly held in the prior opinion and that much is clear from the shah case where the court held that quote in the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit the united states is immune from an interest ward with was this argued before the panel last time around by you there's a strict construction under the yes yeah certainly yes we the whole shaw argument yes and then the court further stated that such consent to an award interest must be strictly construed so and then the first example of a waiver of sovereign immunity with respect to interests that the court cited was twenty eight u s c twenty four eleven which is the analogue of section sixty six a lemon when you're in the context of a judgement a refund by court judgement so let's say that w let's say we you know we're going to follow scripts and that would mean that thirteen forty six is enough itself stablish is the jurisdiction so we don't need to look at sixty six eleven as an additional statute conferring jurisdictions so while would we be in what would be the poet in our deciding to characterize sixty six eleven as a further waiver of sovereign immunity other than just to get you a canon of construction that you'd like to have but analytical why would we ever want to make we're done with jurisdiction right why would we want to discuss it were there and we're not saying that that sixty six eleven is a waiver of immunity to suit it's the separate waiver of an immunity seem to think there was anything i mean i understand and i understand the distinction between the immunity in the from suit in the need to have an avenue for relief but but i'm just not sure scripts doesn't seem to have thought anything was incomplete what you left thirteen forty six is establishing jurisdiction in spite of shot right and  wooden we had on the door of your heart in some way from scripts to embrace your analytical framework for the cases you're now articulating it well there was no issue in scripts as to whether section sixty six eleven must be narrowly construed the only issue in scripts on this issue was whether thirteen forty six provided the necessary waiver of immunity to suit in cases like this sixty six yes they were scripts was also talking about whether or not interest specifically could be recovered and thirteen forty six as a vehicle for finding jurisdiction for that wasn't it i mean one that the hope point of the opinion in scripts yes sums in clothes interest in that provide the vehicle for seeking to recover your interest right right but the question is it does the scope of the government's waiver of immunity to an award of interest in sixty six eleven there's no question that the government has waived immunity to interest in section sixty six eleven you know that's that's dispels it out that's the statute says you get interest the question is does the scope of that waiver have to be construed strictly and we maintain that it does under the under the plain language of the shaw  case you know it talks about it acknowledges that it's a separate waiver from the general waiver of immunity to suit and it says nonetheless it has to be strictly construed it says it it's an added gloss of strict ss on the normal rules of sovereign immunity so we feel that this shop court was looking at title seven's attorneys provision and finding significant its failure to mention interest scripts interpreted shot right i mean the the issue in shaw was whether there was a waiver of immunity to an award of interest here the issue there's not an issue obviously there's been a waiver of it of immunity from an award of interest the issue is does the scope of that waiver must that be construed strictly and  suit is we maintain is fourteen ninety one the scripts court thought also that thirteen forty six was a waiver of immunity to suit sixty six eleven  again it's not a jurisdictional provision but we maintain that the court in scholl clearly stated that when you've got one of these waivers of immunity from interests that separate from the general waiver of immunity to suit you still have to know go ahead i just to address the merits you're just just apart from the presumption it's just i take it your position is somewhat close to what i was describing when i was asking questions of your opponent which is that that this this deposit animal is a little bit different from an advance payment and has sort of special right all the t s but  it's an option what's what if that's close to your position what's the what's the statutory basis for such an animal well that's that's a good question because they pay  me and i think i don't think you will find you know prior to section sixty six so you agree it exists the m there is the absolutely it happens and it's been out there and something like that has been going for a while and it's been out there so where did it come from is my hundred twenty one but it goes back a long long way and i think you'd be hard pressed to find explicit authority in the code for this know what we would decide all these years later that there was no authority for it i'm sorry what if we decide all these years later that there was no authority for how does that affect this case if there is no authority that they were just giving something out taxpayers they didn't have any right to give i'm not saying that's true i'm just wondering what the how how strong this well that would here is some mean but it's something that again was first recognized by the you know updating this this and and all that time you would say it was assumed that no payment would be made on on on those even the simming the taxpayer turned out to be correct mean right is it clear from all of those sources that you looked at that that's an aspect of it i mean if you look at the legislative history to section sixty six zero three which was an act that i believe in two thousand and five you know all the committees clearly state a deposit in the nature of it you know who's going to jump on us if we start relying on that kind of stuff we all know that well i guess if we can look at the mean and please all the justices on the supreme court not just  well i mean i think the point to be made is that while you might be hard pressed to find explicit authority in the code for this animal i think you'd also be hard pressed to find that the code prohibits this affirmative statements be absolutely nil and as they're contrary evidence of the practice of not paying overpayment interest on those things no no so we just don't know or there's never been overpayments during all those years but i think there are there are i mean it's i mean the issue is so well settled that i don't think it's been addressed in a long time well settled in the sense that you just haven't paid that well settled in the sense that a deposit does not is not a payment that i would try to get away from the definitions and look at the practice i'm sure the various documents say various things about the words  apply when it is the the the amounts prior to that changeover prior to the application as tax have never been paid you're saying that's correct that's correct and would but there but despite that consistent practice you don't have too much evidence that that's the practice is that what you're saying well you're just telling me i know you know what your department does but i mean well easier if we had something to cite again i mean the practice was so established that there just aren't a lot of challenges to to this to the i guess what i'm trying to get at is when ford did this if they knew that by making this option rather than the other option meant that if they ultimately win they weren't going to get interest takes a lot away from their from the equities of the case if they thought giving this was as likely as not well how did that how were they to know if if all of this practice was unavailable are you with me you see what i'm asking i would think that a large taxpayer like ford has has dealt with this procedure year in and year out and knows how it works but i'm asking is there any evidence that we could usually when we say we assume a lawyer knows something we assume the lawyer knows something because there's a place she can find i think there was and i can't remember who it was you know somebody from one other than the supreme court picked on right now somebody from one of the big four accounting firms came up with this idea what difference does it ford was well aware of how this works i mean well i haven't been able to my question as well i know but the book where we're into in the absence of judge rogers question where would you put it so it's clear congress wasn't thinking of this at the time in a neck to sixty six eleven her head i mean it sounds to me like you know a likelihood ford was aware of the differential treatment because ford is a sophisticated taxpayer and because this dispute emerge out of a long standing procedure but what does that have to do with the interpretation of the statute is what i'm asking you i don't i don't think that it has a lot to do with i think  judge rogers was just saying it's sort of takes away from you know the equity of their to the extent there's any equity in their position that destroys it but but in terms of how that affects the procedure that was applicable at the time obviously is not a model of clarity but i think it's important to note that ford's argument here it is not limited to this relatively new practice where the i r s allows people to convert deposits into payments just on demand  arguing that whenever a remittance that was initially designated as a deposit is applied to satisfy a tax liability regardless whether that remittance was converted into a payment at some point in the interim that remittance attains retroactive payment status all the way back to the date of remittance and i mean that's again it's there not just limiting this to this special case of you know where the taxpayer requests a conversion so this is a pretty sweeping sweeping argument and and the only argument in support of that theory that ford raises in their reply supplemental brief is quote that is the only way to understand how the iris treats underpayment interest and i would suggest that in all the years of judicial and congressional commentary on this system on deposits in the nature of a cash bond no court or congressional committee has ever suggested that deposits stop the running of underpayment interest from the date of remittance by virtue of some retroactive change in status when they are ultimately applied to satisfy tax liability now i think the universal understanding is that the i r s may allow tax payers to stop the running of underpayment interest by means of a remittance that is not a payment of tax period neither initially nor retroactively so and then also on this on this point about ford's the theory that for advocates and that is that when the ira supplies a deposit to satisfy a tax liability the deposit retroactively becomes a payment all the way back to the data  is precluded by the revenue procedure that's at issue here in new procedure eighty four fifty eight there section four point zero two paragraph two and that provision clearly states that a deposit that is applied against a later assessment is applied as a payment of tax as of the date the assessment was made not not retroactively back to that to the date of remittance and that's entirely consistent with  troublesome second sentence of section five zero five of the revenue procedure which provides that were written so that was initially treated as a deposit is subsequently converted to a payment of tax prior to assessment pursuant to section four point zero two three which was the only provision in the revenue procedure that contemplated such a pre assessment conversion there mittens will bear overpayment interest i e will be treated as a payment of tax from the date of conversion and deposits like fords that are subsequently converted into payments of tax prior to assessment under circumstances not described in the revenue procedure should likewise bear overpayment interest from the conversion date not the earlier remittance state just like deposits that are converted into payments of tax by virtue of having been applied to satisfy an assessed tax wonders a few points first on past practice we disagree with his characterization in this case the i r s initially treated the the deposits as payments for purposes of the overpayment interest provisions and the record cites that is on page seven of our initial reply brief secondly ford when it made these deposits specifically and explicitly really relied on the irises own revenue procedure eighty four fifty eight the only published guidance on this and as this court recogniz and the district court has recognized that the i r s has not offered a coherent interpretation of its own revenue procedure we specifically relied on that in third in discovering this case relied on a you relied on something that required an imprint i mean it didn't say you will get this well what it said in some other situation you would get you would not get it and therefore you assume that by negative inference you would get it because you work within this exception is what it what it explicitly says your honor is that for purposes of underpayment provisions  the deposit will be will be treated as a data payment regardless of whether it's designated as a cash bond or something else the revenue procedure explicitly says that and then in five point one it explicitly says deposits that are treated  that i mean that's part of the i don't know if you buy that sort of assumption of what the nature of this animal is it is something that will stop under underpayment age but the only way you can do that your honor is if the deposit is a payment that's the only way to understand this gesture and that but that's the that's the legal argument i thought you were addressing the how much notice they had or you might want to and i think that that revenue procedure eighty four fifty eight is perfectly consistent with ford's interpretation we also asked for discovery irises past practices the i r s refused to give it said it was irrelevant to this so for the iris then to come here and argue that you did you challenge that in core we did not challenge that we've made clear our interpretation of the past practice here with respect to the statutory scheme  interpretation has to be the longstanding undisputed position that the data payment for purposes of the underpayment provisions is the date of the deposit and once you establish that i think that these provisions are functionally functionally parallel and the data payment for purposes of the overpayment provision has to be the same the same remittance can't have a different date of payment based on whether or not it turns out that there is an overpayment or under payment of tax and for purposes of worries about  what this court's decision would do with respect to prior history if the court concluded that the data payment for purposes of the underpayment provisions was not the date of deposit then it would cast doubt on the longstanding practice of treating the deposit as a data payment for purposes of the underpayment provision and suggest that the i r s for decades has business been to fees in interest with no statutory authority to do so and again that's that comes from sixty four zero for the third is current position really makes an absurdity of the current statutory scheme as as we've noted after the events at issue in this case i r s amended these provision at sixty six zero three which now provides that the taxpayer actually gets interest on a return deposit so under the irises understanding of the statutory scheme congress would have granted the taxpayer interest on the return deposit which is fully consistent with the time value of money principal  congress wouldn't have intended for the taxpayer to get the full time value of its payment when the taxpayer makes the deposit and those funds are actually used to pay the taxes issue which is exactly what happened this case that makes no sense whatsoever the only way to understand sixty six zero three is that congress had the same understand in the past practice that the taxpayer does here which is that the deposits the date of the posit is the date of payment for purposes of both the underpayment provision and the overpayment provision that's consistent with the statutory scheme it's consistent with the retire esus own revenue procedure and the last thing i would say is about the equities in this case for the border see the thirty day notice saying that it underpaid i taxes by substantial amount at that point it had little choice but to give the iris in the form of these deposits over eight hundred million dollars and we could have given them an advance payment well your honor it could have but what it did was it gave the i r s this money and the iris immediately put that money into the u s treasury get it subject to immediately taking it back right well they could have your honor but the point is they didn't and that's relevant but then under the under this possible scheme that may exist whether it's justified or not when they gave it they had the choice to make sure that they got what they got over payment interest if it turned out to be an overpayment they didn't select that with respect your honor i think that is irrelevant to the application of the time value principle money a principle that this court emphasized in the scripts decision the fact is the ira's got the money put it in the us treasury it got the full benefit of that money it determined that th almost mean it can't really use money that people can take in at any time you absolutely can your honor you put it in the u s treasury in accounts as funds belonging to united states just like anything else the i r s could have earned its own interest on that actually it could have used those funds against other funds for purposes of debt purposes it absolutely got the full value of those funds and that's why once it's determined that the taxpayer in fact did overpay its taxes then under scripts under sixty six solution we get just as an economic matter i hate to quibble but don't usually get higher interest when you loan something for a longer term well you loan something with the right to retrieve it at any time that's like a bank deposit usually you have slower interest than if you buy a two year c or something like i don't think it's right i would disagree with the notion that this deposit was a loan it's right that the i that ford could have asked for it back but that what's relevant is that any time they could ask for a pac until they convert it until that converted  but what's relevant is that the iris had these funds used them put them in the u s treasury and under it in the record that the iris had the funds out of the arris put it in the us your honor we stated it several in both our opening brief and back as the court said in scripts the purpose of sixty six one one is to disgorge the interest that the that the iraqis had as a result of the overpayment and make sure that the taxpayer gets that back and so here with sixty six eleven does is it in titles the tax payer to the interest on the funds that were used to pay the taxes and to disgorge the iris of the bend at the time value of money benefit that it wrongfully obtained and that's what ford is asking for here to allow the government to prevail on the merits would unquestionably allow the government to have the benefit of a windfall the benefit of the value of ford's money on overpayments that it was not entitle to for that reason court to rule for the taxpayer on the merits to find that there's jurisdiction under thirteen forty six and define that the strict construction rules limited to thirteen forty six and does not apply to sixty six one thank you counsel  will be submitted to major in