the partners to win this action as you know we're dealing with the federal section six you know three program in this appeal congress enacts section six you know three as part of the american recovery and reinvestment act two thousand  the purpose was to incentivize investments in the country's rapidly deteriorating economy buggers want to companies to invest money in defined projects so as to create jobs and boost the economy is there a point on a scale of say one that cause i was going to ask you about my little motion generating electricity generating devices i carry when i walk it recharges the phone and so i put that on top of the vibrating steam pipe and that's enough the short now as opposed to thirty right what's the statutory authority in that allows treasury to give a thirty percent benefit to encoding written so well but that's in the case of of this percent electricity to qualify you don't generate dreams and electricity and you were given a gift by the federal government i don't think so because statutory basis for congress made the choice apparently there's worse each one to me in stories that don't even produce twenty and a congress that if you're in code generating facility you can't get a penny if you don't generate at least twenty percent electricity your that's a clear statement by clark right and now you're telling me i go back over and i have to bootstrap in there where you are by reading into the word electricity something else including you know b put it there it was simply are you generating some electricity and again this is not a forty five production incentive program it's a put money into our economy program and that's we've got to be partner stood here so it's been generosity it was not unlimited however and it relied on stablished terms in the tax code that either explicitly or implicitly limit the reach of the stimulus program to specify the energy problem and these limiting terms provided the framework in which the treasury have a qualified facility then you get the credit for just as much as is produced so with we believe there something and as reason because of the notice it's long been treated that if it happened under forty five has long been treated  right right and what the notice is what the practice has been under forty five which is a co generation so we can qualify as a  payback will be thirty percent a thirty percent ten percent it isn't a change from the previous way of living benefits right for forty five hostilities yes but we do know that congress did the thir we agree that there is a potential conflict in the statute if you read it the way to every reply was it's you way that we have seen it is that you know combining power facility and arm can get ten percent of all of it lie to have to be an integral part of a qualified facility and what and what we don't need to go on to decide would be a reasonable allocation idea which comes from i definition in the regulations of what tangible personal property is as opposed to other vengeful robbery and it sure looks like these facilities are tangible personal property not other wealthy things to say on that intangible personal property i structure as also we should say that the regulations in section forty eight are not a perfect fit here because they were written for the previous version of section forty eight which was a general business investment property investment credit so the types of things you get credit for under the old forty eight are little bit different now section forty eight now is limited to energy property and so the types of not every piece of tangible personal property will get credit under forty eight because it's just not related to energy production in the in the past with a general business investment credit you might have gotten credit for you know this iraq's machinery that you know the shelving on the walls and whatnot in but that real property right and when your same tangible personal property you're saying it's not something that is real property and is not affects in a permanent fashion right right respect i think their chief argument against the allocation here is given any deference to the guidance here and i would just say on qualifying our qualifying activity distinction  we think that you know the notion of qualifying non qualifying is built into the statute in forty eight they were qualified or qualifying appears thirty times in section forty five which presumes that some things won't qualify i think what they're really arguing about here is this notion of noteworthy that treasury chose to give to the partners one one hundred percent of the grant shot for a substantially similar project going real difference being it used to boil over step three four in their view there are real differences it was a mistake in the first time and then it woke up to the proper treatment the second time but if their view what is your view about whether this is other tangible property or tangible personal property under forty eight point eight five  tangible personal property that this phrase but only as such property is used as an integral part does not apply or that it as of that phrase does not apply to change our course will probably you argue that either in the of federal claims or here it was not raised because it was in the contention that this was not qualified property