united kingdom are treated be treated as taxes rather than expenses under the pretax profit test he found that the transaction had an economic substance because it was had a positive pretax profit has an economic impact also has economic substance if you disregard all tax of facts in this transaction that is relatively undisputed the government's point is that the b x payment or the barclay's payment shouldn't be treated as income or re but they would concede that it is treated as economic income to santander then the transaction as it passes the pretax profit test so this area we think point out this is a federal common implementing that adopts a floor of any substance test so the government in this court concedes that the bartley's payment is not a subsidy or defective rebate either as a matter of form or substance under this statute and under the fifth circuit and the eighth circuit in the compact and i yes cases in the federal circuit the federal circuit rule for us on barclays payment issue and the ride on the whole county so i don't think judge o'toole is up there there's no need to destroy the economic substance doctrine in this case because the government can always adopt regulations to do it to do it to address any issues that it sees and frankly it has had room making authority under the twenty ten statute and it's declined to exercise it and so we don't think the government should be coming to this quarter asking this court to do its work for it has the authority to address this question without involving your honour's and that  our job is to make money if the substantial amount of money in this case the barclays payment hundred ninety eight million dollars hard to say that that is not enough to demonstrate economic substance but there's more in order in the mining barclays had to put  or i'm sorry sorry i had to put six point seven billion dollars into a trust any united kingdom trust that money just to me to be concrete about it this is a autobahns there are other ways earning money and that money goes i think illustrate what's going on if a european government gave tax credits for a renewable energy project and the u s bank lent money had good interest rates for the bank based on the  the the record is what it is they're negotiating history is what it is and so there's no question of trial so that's our main point on the second circuit but you really shouldn't follow it because it's got the wrong legal standard to it which is that that it's a fact question in this case the government is not asking for a trial anymore so i don't see what facts they're us if you're honest look at page nine forty nine and nine fifty of the federal circuit's opinion it says treat foreign taxes as expenses would be wrong because it would discriminate against odd transactions  so the federal sort it agrees with us up to that point and then he adopts a test which is basically when there's been a meaningful economic change in position on the part of the taxpayer and whether the taxpayer has a motive that not whether there's a substantial change in this in any taxpayer's economic position because that second formulation is in our view an unbounded and sort of stalls impressionistic test which doesn't