familiar with the war that we have dealing with employment cases in the government when an employee is faced with the choice of either having was involuntary or uniform rule is to say even though you are faced with two difficult and unpleasant choices when you make a choice it's a voluntary choice be income tax of all under the internal revenue code correct severance pay is income taxes and the reason that you are very interested in having these payments classified under sub is your argument that sub payments since the title of the sub statute thirty four zero two zero says not rages that these are not wages and even though they're not wages they're still income tax of all but nonetheless you're arguing of the internal revenue code why should they not be wages for purposes of fica even if they're not wages for the purposes of the internal revenue code they're taxable they're in taxable income and i recognize there are lots of things that are taxable income that are capital under fica dividends for example but those are the kinds of things that are derived out of the context of the employer employee relationship so when you start thinking about i mean severance payments these people got fifty thousand many of them to waive the contract of employment rights they were entitled to when they joined the organization under the collective bargaining agreement so that fifty thousand is really not any different than sixty percent for sixty months and that sounds an awful lot like something that would arise in the context of the employer employee relationship as such why don't we treat this is wages why don't we treat them as wages for fica purposes why shouldn't they be been traditionally by our courts always treated as wages severance pay that is payments made in light of someone leaving their position for fica tax purposes have our courts and other regional circuit the fifty two weeks one plan i think i understand where you're going in in order to save your time for you it isn't as where you're going that the distinction between that case and this one is this is fifty thousand a matter how many years you work here no matter who you are no matter you know what problem decided or is that sort of like a furthermore this is further evidence of the fact that this was a payment made in the context of the employer employee relationship i mean i guess i didn't read those papers a thing and if the payments are structured like this then they can't be considered sweet i mean i didn't read the cases as having such a strict approach to those payments no doubt those payments added to the reason the court concluded their wages but i did read of cases and saying in the absence of these criteria something can't be treated as wages and my wrong in my reading of them i was not what's wrong now i'm wrong all the time post employment benefits wouldn't that be something that would be in dishes at the post employment benefits are part of the employer employee relationship given that when he that's one of the reasons he took his job is because he's got some security to make sure his family is not without payment if he should get laid off he's got a guarantee of so many months at sixty percent he's got a guarantee of certain benefits continuing wouldn't that be evidence of the fact that these are in the context of the employer employee relationship is not sort of like a promise not to sue me afterwards here's here's money is in exchange for a promise not to sue or they're not tort payments are clearly made in the context of the employment relationship  at this thing globally one way is the way you just articulated look we've people are given separation payments not because they're being employed by the employer but because they're being unemployed by the employer has nothing to do with employment and therefore let's just acknowledge the fact that all of these pay that are unrelated to the employment wage experience they're the antithesis that's one global position the other global position is to say look all of this comes of that because these people were indeed employees if they weren't employees there would be nothing to separate them from their employment whether it's based on seniority or history or whatever all of these payments are relevant only because there was an employer employee relationship at some point in their world and that's what these payments are involved with under the breath of understanding about what a wage is and it is very broad i want to come back to the question of why you're not rolling eyes but under the of that broad understanding everything that was done was done in the employment context and therefore it always does and i appreciate all the fine art of arguing that but wait a minute under the withholding tax we have a section that seems to say that this is a negative seems to prove a negative and we have all we can go through all of that but it misses the big point the big point is either globally this thing has nothing to do with employment or globally it's all employment at the moment i'm inclined to think you are rowing higher that is all employed and i want you to help me understand how you're going to escape from that beyond saying the one nine hundred eighty three act which talks only that regulation sort of the couples how you're going to is there any you have any better argument that rowan doesn't exist is not what it is but none the less well probably because given the history probably because the problem with calling wages is because these things were supposed to be supplemental to the state unemployment benefits that would have disqualified all these people from getting state  unemployment benefits in many states that said if you're getting wages you don't get the unemployment benefits and i gather was the problem they were dealing with you probably know the history better than i do it that's my understanding of history if that were true why is it true that's my exactly did congress to do when it enacted thirty four two did it change something very it was very basic about the fica tax law when it did that and did it do that in a by implication removing that payment from fica and that well why was it not us what is what was it about and we come back to the question you keep saying it's not a sub surely not because your law firm doesn't have blue collar workers i mean that's not your right to it wasn't some what we're trying to understand though to see is what was the history before the statue and how did the statute change that history both for withholding and indirectly  six but that is in terms of contract my house as i understand right i don't and what's more that wasn't that limited in sixty have been a couple of of later revenue released i think the narrative to narron that i the reason i think the law firm actually was you trying to i'm trying to give you a hypothetical that would not implicate the fifty six revenue we're going to add seven minutes and then it's miss you really need to the i believe that was about sixty minutes was it's additional time that we had eighteen ok why don't we have in the event mr green needed in the says well let me make sure i understand where the fifty six and fifty eight the reason this matters it sounds like ancient history but where you end up often depends on where you start and here i'm trying to get a sense of what the baseline was in one nine hundred sixty eight from which we can and draw some inferences as to what congress must have done by way of intending to make changes so the baseline i take it fifty six revenue ruling says if i understand it correctly this is wrong says that if you are linked in the sense that that term is is has been used in the revenue rulings to an uninstall unemployment compensation scheme then it's outside of the  a ruling that actually goes more toward their core state right ok but that those were the two as i understand it with the two exceptions to what i understood to be the general rule that severance payments as not being wagers they're going to leave it that way so i take it your position could be summarized with respect to the anakin thirty forty two and the purpose in the scope as follows that prior to thirty four zero two payments such as the ones that issue in this case would have been subject to fica thirty four zero two did nothing more than simply make the same payments and subject to income tax withholding and did wait a minute now you just switched me around again because what you're saying is that thirty four zero two then was applicable both to withholding and to fight where congress enacted thirty four zero two  s because that would unquestionably under any precedent that doubt the decoupling that occurred by congress any president to doubt that issue seems to acknowledge however that indisputably the eighty three nachman allows for regulation that would the landscape with regard to the couple definitions right so going forward it seems like you got to clean up the nest pretty personally have seemed to have taken a different view that's eighty three statute that's fair to say now if you think yes i mean that's a dramatically different view yes any conflict in the circuits different view well pressed further explanation of what supreme court said to get where you want to go let me see if i understand what we'd have to do we would have to say that is no longer a good law and we would have to say that that was true because the parallelism that rowing fall for between withholding that in terms of definition application was overtaken by the eighty three amendment which congress intended to be read broadly so that those parallels no overtaken in whatever we may determine really means to us and that as a consequence of doing that we can then read what is currently the rules applicable to withholding differently from the rules applicable to vikings do i have a sequence correct i think when you somehow backdoor why narrow bit elsewhere both ruling and anderson i guess involve specific designated categories of benefits that were the income tax statute and that you would have a different result this that whether one is taxable in one versus in the other and that that's my understanding of what rowan and and anderson are both about correct right so your argument then i take it is that it's quite a stretch to say that an implication from the use of should be treated as if wages is an implication from which we can draw the inference that in fica these same kinds of payments are not wages next that is stretching to change you're going to ask you a question just about the practical impact of this decision is this case in your view limited to the preen nine hundred ninety era given the  change in i guess it's the one nine hundred ninety revenue ruling that that that i'll turtur obviated the seventy seven ruling do you think that post ninety everything none of of any of this dispute similar employees today who were getting benefits that judge we said were not subject to fica would still today have the same argument that the employers would have the same argument that employees in that position were not subject to fight under his the the ground shifted with respect to post ninety pains well you know your stand where i'm going i mean i want to know if we're talking about history are we talking about a dispute that has current important current implications well to the extent that you were a fur judge reese's decision right obviously the similarly none of those apply to fica because like it should be treated differently it was if there are additional specific exclusions that come along if another thirty four zero two zero zero zero type of thing with an active pertaining to something slightly different would you say you would argue that no matter what congress legislates with regard to internal revenue code it is not