george the i rest several years later sas taxes against his wife and  at the denial of interest is a factor which we believe was wrongly decided by the court on the grounds that george didn't have the benefit of appreciation the time value of money the use of that creditors of money which passed in succession from those wonders to you to george where he really made the payments and this is important in this because the payments extended for a period of fifteen years from now total amount of issue there what is the total amount in issue with respect to the interest payments me guess that perhaps was tricky when he was paying this mortgage was also taking and he duction for the interest that he was paying that is correct your honor so this matter were to be remanded back to the trial court not only w have to try to figure out what the applicable interest rate would be that mr kenny would be entitled to but you'd also have to determine whether there were any offsetting deductions that would have to come off of that because obviously otherwise he'd be getting a windfall for that interest deduction amount of the just that you're correct the second point that i would like to raise with th spent simply given this case prepared and i believe that a lawyer should not be disadvantaged by having to split that time in sort of a meat cleaver fashion based upon the percentage factor back and look at this time after the fact after it was courted and allocate it using his best efforts between the time spent on the last issue the benson issue and the segregation issue which is the fifty three percent issue broken out in the record can can we find that or do we or is there is there's the problem that it's that is really not on the table it's buried someplace in our papers your honor we spelled out each  and prevailing is defined in part as prevailing as to more than half the amount that's in dispute which is the fifty three percent which was mentioned earlier secondly the the court must find that there was no reasonable justification by the government for its position and in this instance the district court correctly found that the issue of subrogation was raised with the internal revenue service prior to litigation and that was by the the declaration that's just been alluded to excuse me can i interrupt you for just a second kind of ask me question what wasn't your position at the very beginning that the government was not entitled to any respect to his own one half interest and if and that's an important point to remember if you are the holder of the joint title then you have a legal right to the benefit of case is no different than any of those cases where we've looked and we've seen that they are yes put in the shoes of the original senior creditor but that that alone they are not contractually succeeding to the right is if it hasn't been paid they are simply given the priority as if for example there was a second mortgage on the home that had not been paid off and then they get the principal at the time that the proceeds are dispersed yes there is under an equitable remedy perhaps the district court had the discretion to give interest but he chose not to and i don't believe that was an abuse of his discretion i don't think it was an abuse his discretion to cite the fact that mr kenny did enjoy the appreciation on the property during the time period that he was making those payments obviously he made payments on his wife's behalf in order to protect his own interest in the property as well as her continuing one half interest in the property council the government got about seventy thousand dollars yesterday in this case what is your contention as to what the government should have gotten well we believe that the district court although we conceded the those proceeds the senior creditors are paid off first there was a mortgage that continued that there were two mortgages that continued on the property at the time of sale they were paid first it's our contention that the subrogated amount should then have been paid at the same time out of the total amount of the proceeds before what was left over was divided between the co owners the district court chose to do with the other way it paid the actual mortgage holders off and then divided what was left which was roughly five hundred fifty mandated that we will recognize these equitable rights to a certain extent however if you're really in the shoes of a senior creditor ordinarily your interests are not in your twitter twice your tangled up with the co owners residual interests and you're going to the scene of creditors are going to want to be paid first because they want to be sure that they get their money they get all the money they were entitle to under the note or whatever it is that they hold in this case by and then just the co owners then divide what is left in this case hundred forty thousand dollars to be divided but i believe i believe your honor that the problem with that is that only half of that hundred sixty six half of the paid on his own behalf half of that he paid on behalf of his wife it was only some eighty thousand dollars or don't know all the facts of that case out by i don't believe that's the same situation we have here in this case everett no one's arguing that he was entitled to get that entire one sixty six before the government got anything well what we've agreed to was you subrogated to the h he didn't have to do the proceeds without much more when it was sold i don't know health answer your question as i recall the three hundred seven thousand represented the next procedure yesterday including any mortgage balance there was at that point right ok why don't we just split the three zero seven right down the middle one fifty three each and then apply the eighty six offset off each what's wrong with that property is owned jointly so fifty percent goes to each each side is entitled one hundred fifty three thousand dollars why don't i guess where i'm having problems what is wrong with offsetting the one fifty three of the eighty six on and not paid out of one half of the other but what would happen if what would happen if in fact that debt had remained outstanding that hundred sixty six thousand dollars was still outstanding if it hadn't been paid well i'm seeing the bank put a foreclose on the property  would be the effect of that what would happen is he would take your three hundred seven thousand dollars he'd subtract one hundred sixty six thousand that would be old to the bank right right and then you divide the difference right right by half exactly right and the united states would have got more calculated if you can find another case where they did it that way i hope you have better research skills than i do which is probably true and i would like to ask you a question he's quite let me turn to a perhaps more minor issue and that's th to being right this clearly or the government well if you look at the dollar amount he got fifty three percent under the way it was calculated if you look if you if you agree with me and likely scenario that you agree with me on this point and we get  more money then he won't get any attorney fees because he will not get up to fifty percent was the government's position that you are entitled to all of that one half and this is kenny i'm sorry what was done sale he didn't say equitable something changed and he cited that he has case which was not an equitable subrogation case and the government did not and it was but you say it wasn't clear it wasn't clear going back if you go back and read the pleading that it's not clear that he was raising applicable subrogation as a remedy and so between that time and the time he filed this motion for summary judgment which was two years later he never brought it up again there's nothing in the record there were there were a million trances there i have extremely generous and fair to mr kenny and granting him the percentage of attorney's fees and that he certainly is not entitled to any more than that amount because the record simply are not clear yes there are a few things you can you can look at that yes obviously he spent some time on equitable subrogation issue when he was drafting a motion for summary judgment although that was again not a huge part of it but he is i honestly tried and could not find any rationale that explains how  redacted those records he put some things in there such as the complaint didn't mention i could also be a geisha and whatsoever and he seemed to think he deserved all that time credit for all that time and other things he said were not susceptible to allocation some things are well it  was you know obviously he couldn't have been expected perhaps to keep track of that as he was going through but because of that because of the state of the record i think it was extremely fair to give him a percentage and certainly not an abuse of the judge's discretion  let's see what i have here is that the three zero seven to forty four with the proceeds is divided in half as a hundred fifty six to fifty seven but the amount that was actually deposited with the court was somewhat more than that because they're interested accrued during the time it was held by the title company only one comment your honour's and that is again to make reference to government characters in councils argument that this matter was not raised clearly it was raised the court found it was raised the declaration that to which i other theory that's not happened we spelled out in the complaint but it's part of the winnowing process which i would think a court would want from the parties to come to grips with what are the issues the state what you would bring to the attention of the court and it's not proper in a we said met for government counsel expected in federal district court litigation as opposed to refund litigation for example to state this is the new theory i mean here a theory then you ought to listen to it and