good morning neil j block for the taxpayer in this case james benison junior i'm going to try to briefly summarize our position you have five reasons why we believe that the disk commissions paid by sumo holding inc to a disc which isn't directly held by a roth ira constitute a deductible expenses to suma holdings inc and did not therefore constitute dividend income to james benenson jr the first is that this case has been now in the third court the same facts same individuals under different levels of jurisdiction the six circuit heard the summa case six  case ok the only point i would like to make about the first circuit is that the first circuit held that the income earned by the roth iras in question was dividend income from a disk indirectly from a disk not as the result of constructive contributions as a result of mr bennett's and receiving constructive dividends and then giving them the money to his children who then made excessive contributions helpful because there are unusual starting from ground zero here so you got it please bear that yes but everything's a but we were we were asked by the first  commit to being bound by the decision in the sixth circuit with respect to the parties the benenson father and children second the sixth circuit w only having jurisdiction over the deduction was placed in the position by the responding from that case by the government of having to deal with every issue that's been before all three courts in other words it was not a specific selective item that was presented the position of the government was that this is an unbelievably severe attempt to stuff a roth ira through improper  actions and they gave the entire improper stuffing of the roth ira as part of the entire case in fact was the main case that if you would allow mr bennett's and his company to pay that this commission and not have it and have it respect we never would have been able to stop such and such a thing so the point being is when you get to the privity when you get to race judicata when you get to the other factors you have the situation that which was raised by the way in the mazy case which i was going to get to next by the dissenting opinion when he says that why was this case restricted simply to the deductibility of the disk commission when the government itself put the entire issues there were before this court and before the first circuit in front of the six circuit and the six circles of opinion therefore in order to be a complete opinion held that there was no dividend and by the way the sixth circuit does have the jurisdiction to circuit went the other way i expect that your client would be asking us to look at a new year taking the view that he and his liability were only before this court privity on this record or are you just taking the view way oh the government only gets to litigate this question once will matter who the parties are i would remind the court that if we got lost in the sixth circuit we would have lost in all the circuits because we agreed to be bound by the six circuit the pinion in fact we were asked by the first circuit to bind ourselves in order to go to a delay in the hearing on the first circuit and then this court is bend in corn we gave it to this court where is it in our brace it is a part of the house and fact until we gave the commitment to be bound by the first the sixth circuit opinion we were not getting a we did not get a of the hearing in this case we only could get a postponement of the briefing in this case by making that commitment and they out and did the and did you ask for a reciprocal commitment from the government no why not i mean if you had to give it why didn't you ask the government to have to give it then as to the request we got from the first circuit was that we give the commitment and that the government would not be bound ok why don't you get to the merits well the merits are fairly simple there is and that's why it was mentioned the first circuit and by the way then i would like to mention before i do that the mazy case has abandoned the theory of the tax court in the in our case because mazy case is basically a companion case to this case involving a foreign sales corporation rivet in this case and in the companion in the mazy case they addressed the holding in this case indirectly and stated they were no longer  the opinion on an ownership of disk stock by a roth ira provided the opportunity of disallowing commissions to the roth or the disc and involved in reallocating it to the shareholders of the related party which would be mr ben and this first circuit opinion focused on the mazy case majority opinion and concurring opinion is that they were not taking the position that ownership of a disc by a roth ira is tell me in a nutshell while you think you should because the code of specifically provides for what we did and there's two sections of the code section one ninety five g which addresses the payment of a commission to a disc owned by a roth ira and which says the dividends from that disk to the roth ira are unrelated business taxable income and without that provision the dividends to the roth ira would not have were not been allowed tax they would have been taxed without there was not hurting how did they create the disk i thought only the export company could create that's not correct well then help me out you're going to have to be patient that's fine so i'm here for a disc is simply a corporation which can be organized by anybody one of the anybodies is the roth ira the rother a is the incorporate or of the disk it is the original subscriber to the disc stock when the disc stock is issued all there is a corporation w outstanding out as it come to be that sumos money earnings wind up in that disk seumas money winds up in that this because it enters into an agreement with  what they call a safe harbor agreement which is protected by the code in the regulations which states that soon will pay the disc a commission or it will be by cell does you can either have either one and that commission will be income to the disk not subject to any reallocation provisions under section forty two early under any other prison because congress provided for the disk to receive that income the disk is a export benefit we keep on losing but the disk itself was designed to encourage exports mistakes no i had to try to get educated hopefully anyway today virtually all desks are not owned by c corporations and the reason is that it's  sure i'm going to be wrong about this too but you see the problem i have with what you've just outlined is that now that i understand that the disc was created by the sun's roth ira s and that the summa was putting millions of dollars of its earnings or the its earnings of its subsidiaries into it for no good reason i mean as far as soon is concerned it might as well have dumped the money in the river  i'm i'm concerned about the what if this is a permissible use of a disk help me out ok a corporation and the disk was owned by the children of mr benton and the children had no stock interest at all in the in the summa corp that structure is perfectly permissible it's been blessed by numerous rulings and frankly it's it's part of part it's been expressed by congress and nothing's been done about it so the structure of having the disc o by the shareholders of a c corporation avoids corporate tax at the c corporation level only taxes the income to the shareholders of the desk and that is considered to be perfectly permissible  called let me ask you this the substance over form doctrine contemplates that each step of the conscious of this transaction was code compliant still disallows and why doesn't that doct apply here it doesn't apply here because congress did not intended to apply here congress intended that there be nothing done by the disc to earn its money and that its income be distributed to its shareholders  a small a of the roth ira provisions which states that is and less says otherwise provided by the code not by the regulation but by the code a roth ira is to be treated the same as a traditional ira and as the majority opinion said in the first circuit that is a commandment that the roth ira be treated the same as a traditional ira and if ninety five g treats the traditional iras having received this commissions and paid you get income then that's the wrong and i'm trying to be educated here that may mean that everything here is literal is literally from a textual perspective in compliance with the rules but that i don't understand that necessarily to answer the question whether the substance of reform doctrine can be invoked and i'm not seeing how this was in car this arrangement fills the purpose of  what congress intended with either the disk or the roth ira so help me understand that well when the congress passed ninety five g of course it was directed to a situation where a disk was the first son's of the code and almost of the regulations is that unless the code provides otherwise and that doesn't it says the code doesn't say some some theory specifically provides otherwise and that's what the regulation says the roth iras to be treated the same as a traditional ira and a traditional ira is allowed to receive just commissions and pay tax on it that was  theory of the first circuit and with all due respect were took were making the argument that the prince was a comedy which would allow you to give deference to a another circuits opinion and in this case of course it's the exact same facts that we have and so when you're saying why doesn't substance first inform apply and the answer is because congress in the tended to apply and there's certainly no provision for that in the wrong may i ask you about if we were dealing with the traditional roth payment had made been made to a traditional ira then i'm i correct that what would happen is when the ira holder withdrew the money he would pay taxes on it yes ok so what you're saying is that a roth because it's a very different vehicle the dividends get paid to the the ross holder and they can to new do to earn tax free interest because that's the nature of the roth and if congress does not like what happened in this situation it has to change they have his career right now let's put j c holding in the mix what happened here is i understand it is the disc is owned by j c holden yes so when the commission is paid to the disc then the disc pays a dividend to j c holding which is subject to full tax right now casey holding paid that yes disk there was no tax at the roth ira level but the same taxes paid at the corporate level and that's why there was no tax savings by virtue of using j c holdings only the fact that  a found in the first circuit and then the stipulations that j c holding allow to allow the company to be run without the roth ira took custodian getting involved and casey holding or allowed j c nk to be holding with to be to take the actions of a corporation without having the approval of the shareholders now if j c holding had not been in the picture though if the money had gone right from the disc to the w been the corporate tax or no tax no yes tax yes ok but not corporate tax the tax on really the business income tax which is the same taxes on a corporation and in the first circuit opinion  what the court did was basically go through the structure of the holding company owning being owned by the owning the disc stock and then being owned by the roth ira and pointing out that everything fit together the way congress intended this case because of the circumstances has been in three courts with each court having different players in front of it we have mr bairn since jr and his wife in front of us right their conduct that the i r s is concerned with is the initial action of suma setting up or summa of entering into agreements with the with gift yes but to get there they have to get receive a constructive dividend and the point i'm getting out of the first circuit that has jurisdiction over this case say there was no tax free gift because the income comes in  constructive given and now there's a case called hellwig one interesting about the decisions that the appellate court leveled is that they've been sticking with pretty much what the code provides but there's a case called hell would be commissioner where the commish where they service did allow a disc commission to be paid to a disc owned by a roth ira but they can't they can to their service contended that even so there was an excise tax that was due because the excise tax provisions are different from the income tax provisions therefore there could be a concern in actual dividends paid to the disc owned by the roth ira but under the under the excise tax provisions they did not have to give credence to that payment the tax court in hellwig said look at it as if he did the under the supreme court decisions you cannot have a gift tax on a transaction unless you cannot have an income tax deduction in other words what they tell the courts if they're hit as they did duction allowed on the disk commission there cannot be a constructive gift good morning may it please the court eleanor hall from the department of justice for the commissioner internal revenue i'd like to just touch briefly on the preclusion issues which we laid out very thoroughly on our brief and that we think the first circuit got it correct that race judicata doesn't apply and i would just emphasize that basically did i misunderstand that well i think there is a there's a question in that regard your honor but first of all before you get to that question i think it's our view of mendoza's explained in our briefs and i think it is that it doesn't leave any across the country and makes its decisions about whether to seek further review require certainty with regard to whether it's going to be bound in a later suit and when you have different parties to allow in the second suit an allegation of privity to be made and an argument that the gentleman should all sorts of different situations where taxpayers are are the parties against the government might come up with pretty claims in the second litigation and i think the second circuit it's a little bit i mean we have the court has acknowledged the supreme court has there couple of questions there your honor first of all i think he did the record does the stipulated records show that when the transactions took place and when this was set up he didn't control so much that he was the he had he was a minority shareholder in terms of voting interest but he also controlled the trust  which was for the benefit of the kids that was the other major shareholder so he did have the stipulations do reflect that he was in control at the time of the transactions the i think the waters have been muddied by the arguments made in the first circuit and where the sons argued that there was pressure they had privity because the things had changed and there were shifting and ownership and they had taken over the management of suma by the time the litigation was ongoing and when the case was before the circuit and i think that's exactly the kind of factual situation that mendoza's design the first circuit didn't consider it because it wasn't in the record but the fact that they're you know there is that factual question and they've they've in fact raised it and i would just also emphasize that the seventh circuit in canter encountered a similar situation and declined to expand mendoza to create any sort of pretty and exception in that context so i think the seven circus and viewing cantar certainly is consistent with  argument we've made in our briefs and that to apply a pretty exception would run into a conflict with that as well as with the reasoning of mendoza and i guess i would just also add that because different taxes are issue soon and talks about there needing to be exact choose i think there's also a question of whether we even have the exact identity of issues here because there are different types of taxes and different arguments that might be be considered and then i would also point out the argument on the merits is that my understanding is that the transaction you want to tax then and since personally because you are taking the view that the payment of money from summa to a disk which on its face is permissible and on its face is a transaction between two entities that now you're saying no no that was a payment of money to the bands have i understood you well i think you of funds that might start with with a one family member and end up with other family members the courts routinely have said that's a constructive dividend and the fact that it doesn't actually end up with mr benenson and so it is not yet in the sun do we free your theory against the ban and since you are taking the view that the benefits that seumas payment of money to would to a disk that they didn't own was a payment to the benenson sue then decided to give a gift to that or the the judgment you're trying to sustain to sustain in this appeal is against the bends that is correct or have lost the others you'll decide what you're going to do with the first and six are decisions but all we're deciding is whether mr and mrs where corporate shareholders use a circuitous route to shift money back to members of their family that the situation creates a constructive dividend because they're shifting even though they did shift the money out into the dust and then back around to the roth iras those roth iras benefited their family and in that situation where you sit where where money has gone and a circular route back to the party who had it who would have been entitled to it in the first place in order to avoid taxes course the apply the judicial doctrines to treat that as what it really is at the end of the day as a matter of economic reality as a constructive dividend so your theory and let me be sure i mean theory is that at the end of the day this transaction had no economic substance and that it was simply a device i think judge lynch in the first circuit got ins actually right when she said you look at the entire facts and circumstances and i think you know that there are two approaches one could take to dealing with the payment and one is i think is for this court say it's not bound by what the si circuit did in terms of analysis and agree that really what should be the should be treated as a payment to the benenson and then which they did then contributed to their son's roth iras because that's what happened at the end of the day this is basically a spec it through which soon money could be there was concern that you'd never objected to the bonafide of that that transaction i understand that paying fifteen hundred dollars to invest in an entity that within a few years return millions  race is concerned but i'm not sure it's the concern you had raised at any point and in the arguments why i think we raised that there was no risk associated with it i mean normally when you buy stock you put the money that you're putting out there are risks that the business will go belly up and you'll get nothing that was not at the sixth circuit took the view that you're dealing here with two entities disks and roth iras that are created for the purpose of  avoiding taxes and so that takes us a little out of the normal economic reality what's your response to that well i think that yes just are outside the normal economic sphere but the whole idea behind roth iras was that they would actually be making real investments there wasn't the idea wasn't that they were supposed to be making investments the didn't carry the normal risks you know the wrists and the iras are not precluded from holding owns the stock and they're not having it and there actually is the use of the disc for its deferral purpose there might be a situation where the disc actually does have some business it's a permitted to be a shell but it doesn't have to be a shell so there might be situations where an ira investment could be legitimate and where there is you know it let's let's deal with practicalities here if instead of paying them a million dollars they'd gotten paid a thousand dollars on a fifteen hundred dollar investment would we have a concern here well i think depending on when and how that happened it might not violate the the contribution limits even if it w arguing it's a contribution and it seems to me that one of the concerns that's animating all of this is the dollar amount that if this is a lesser son you wouldn't be as concerned here with them having orchestrated it this way because you know there's nothing illegal about what was done that everybody agrees but it was it was designed as a transaction to move  exact same purpose it's just that they only gave him a thousand dollars instead of a million well i think that wouldn't be problematic because it wouldn't necessarily violate the contribution limits what you know that in two thousand and eight the the son swore intelligible to make any contribution to the con if they got a distribution that was a thousand dollars would you be laying out a contribution which they aren't entitled to make or would the view be well maybe that's a fair return on an investment it's almost a thousand percent but one hundred percent but we're not going to fuss about that well i think it's a matter of looking at all the facts together your honor and i think if if it were just like one year where there was only one thousand dollars a dish you might not make as persuasive a case but when you look at the totality of the facts about how much was moved over time the tax avoidance mode of the fact that there was no real economic investment in the stock i think it's really a talent of the facts question and each situation might take it let me outside  the realm it's not like taxes didn't get paid on this money well that's all right they were paid by j c holding at the corporate rate right that is correct and but that's true of all roth ira contributions that there's a payment of tax before the money goes and the tax savings comes in the fact that the earning the reinvestment after you put the money in the roth ira and other investments would be able to grow for years without tax if you just slow down a little bit you could understand the point of what i'm asking you ok you want the money from the parents at the personal rate instead of getting it from j c holding at the corporate rate isn't that what's going on here that's the only argument your honor if that's your argument in this court because these are the people in front of us yes right that's correct ok one of the things the law generally likes to see is notice to people about what their obligations are in these circumstances where you can see that all the transactions were lawful and taxes were paid by the corporation what is the year that would have told the been in since that they had to pay this as personal income tax or your honor if you look at notice those two thousand and four dash a was issued before the you know it was issued fairly early on and before the significant transfer started happening and that notice this is a listed transaction  and it explains the different ways that the service might deal with these transactions and the adjustments it would anticipate making and they've it was not persuaded by that notice argument so why don't you tell us why we should be well i think that the notice doesn't just say only where there's a transfer not for value which in this case i think the facts on the face indicate the transfer was a value even without a valuation analysis and then i think that you know additionally the itself is much broader than the wording that judge sauls opinion would indicate because it talks about trans the transactions described are substantially similar transactions and the earlier transactions in this context did use different types of entities like c corporations and as those have not been successful taxpayers have got more creative with using different types of entities and i think this is exactly the kind of situation that where there's a case w repair i was was one of these corporation who had and maizie then they use the foreign sales corporation but i think these kind of situations where taxpayers use different entities to try to insulate that a transaction that's not permissible is exactly what  the substance of reform doctrine is intended to address with the judicial doctrines are all about about looking at what was this what congress really intended and i think the wording of the notice with respect to substantially similar transactions would certainly bring this within the fold of that notice think is the ninth circuit caution in brown particularly when they are using these tax minimizing provisions it's the role of the courts to look carefully at whether the checks are trying to stretch those provisions to do something that wasn't what congress intended and here we have a very legitimate investment that reflects economic reality not part of a tax avoidance scheme and i think in this situation it's important to recognize that when congress and i did the disk provisions and then changed them idea of this scheme would not have even occurred to congress then and i think the first i could did ask me about whether the binny any other congressional action on this and i wasn't aware of any at the time but when i i went back and we did some further digging information for this argument i did it  come to my attention that there were several staff of the joint committee on taxation reports that did know this transaction between two thousand and five and two thousand and twelve but each time they pointed out that the service was dealing with this through notice two thousand and four dash eight and i think that  the fact that congress never then took it up even in committee or as a bill indicates that they may have looked at it and said this is being dealt with by through the due judicial doctrines and recognize that taxpayers were coming up with all these different approaches to enslave the transactions well i hear the problem is that that they paid corporate tax and a lot of paying personal tax while i think the issue is that they didn't pay in those cases it was a complete tax avoidance but some sort of minimizing tax avoid think in the salomon case it was an issue of moving assets around amongst related companies to try to reduce the tax every would ultimately be every single american in significant extractions is going to do whatever they can to lower the tax liability that's the way this sounds well i think another thing that should have given the taxpayers notice is revenue rule eighty one fifty four which i think doesn't actually support their position but rather supports the government they suggest it's suggest they suggest it means that the discussed to be valued at what it was worth at the time that the stock was acquired but what that revenue if you read that revenue ruling as a whole it's a gift tax case that deals with when demain were many and control over property is transferred and it's looking at when a situation where the parents gave their children and interested and at the time the stock was just its initial capitalization was transferred that was a gift just in the the few thousand that was the initial capitalization and then that ruling said that every time more money was transferred that was a new gift it wasn't like if you gave me if my father gave me stock in facebook i wouldn't get a new gift every time facebook earned a dividend but if rather that would be my dividend income but what this this revenue ruling is saying is that the every time a transfer is made that's a new transfer of money and effectively if the father's in control and he's making a gift to his sons and that would be a contribution to the roth ira in contribution run on any further adjustments as the them and therefore the deficiency entered as to the trust was erode just because of of that error which unfortunately is too late to correct make sure i understand this then so you're willing to give the corporate tax in its entirety back to j c holding courage them to file the claim you can't pursue personal income tax against the suns because that's expired and they the trust is the majority owner of it's only a slight majority your honor but i get as much jack so it seems curious to me that you're going to be better off getting personal income tax from the band and since on part then corporate tax on the whole well i think the important thing here your honor is to get a correct result that addresses this transaction and eve got a very you've got parties who complied with the law they pay taxes you may have more money in hand with the taxes they've paid than you're going to recover in a lawsuit and you can easily go with this matter by going to congress and telling them they've got to deal with the way this applies to seriously are you telling me that you may get less money from the benson's paying personal taxes then you got from j c holding paying corporate taxes that's what you want i have not i have done that calculation your honor i want to somebody should isn't that what this is all the bad getting money for the treasury well i think you know at the end of the day even if you know to get the right result and in this case is is what we're aiming for and i think it is a circuit split ok but but you know to get if there were circuit split i think that would deter additional use of the kind of transaction i think you know the wall street journal already published an article which we cited they get our brief the talked about if you want to say  avoid taxes get a disk and i think that that is you know an cation that this is a problem that needs to be addressed and one more time on just i am troubled by the what a line would be if we if we went with the substance of refor argument between a legitimate transaction a legitimate one other than if it's a lot of money it must be illegitimate and so is it your position that once you exceed the contribution limits in any is and that may trigger looking at the the paperwork on the transaction at the administrators level just in the same way as you know huge him office deduction is my trigger looking at it and then they are may not lead to an adjustment depending on what you find i think the key things are that something is planned as the tracks avoiders transaction are markets and everybody everybody in america does that and i think the other things are that that there was you know can try to slow you down because i want to hear them all so well that this was preplanned is one factor and we were responding well yeah everybody plans to minimize their taxes that's all there being and the fact that there is not an investment a real stock investment investment it's a place to park money that is true though that i think the critical the fact that the same the same family controls there's a in a related control within a family ok and is that all  rate they were ultimately when they made transfers out at the rate there was no your honor the record here shows that there was actually no deferral there was actually paid the taxes right away darn it well they pa the tax on the money going out of the desk but they didn't take advantage of the purpose of the does and they unrelated business and they pay their related business income tax and i think i need to emphasize here that what's important is you know you're talking about the taxes in two thousand and eight whether we collect more but if they're able to shift this money into the the roth iras in country and they did shift millions and contribution mention of the the contribution limits that's thirty forty years to whatever these sons retire and take their money out all your that is actually in them for that is sixty eight thousand dollars each right i mean that's what the sons each have to pay for having made excessive contributions to the i r s well the ex d we interrupted and so you didn't finish telling us about you mentioned valuation as a factor in the substance over four and knowing that this is a set properly in the case of substance right i mean we didn't do a valuation here i think because it didn't seem it's first of all it's very difficult and would be a very litigious process i think to arrive at a valuation for the stock but i don't think the stock is just the par value at the time that the transaction occur you know the transfer of ownership to the  c to the roth ira occurs but as revenue ruling eighty one fifty four as it reflects that's all the additional transfers that might come and if for example you had a situation where you transferred stock and it came with not only w capital was in the country company at the time but with contracts like exist in the the this situation of future money that is supposed to come in or permits contract or something like that experts have to just doing a valuation that require that involves looking at all these factors and deciding what number should be the valuation of the stock and that process would be an expensive litigious process and here i think it's very obvious that the stock as long as it's held by the hypothetical third party pay for like you or me and the answer is nothing because there would be no guarantee that anything would continue to flow particularly since they're not using the disc in any other way that will reflect you know using it to something to do with their qualified exporting income or anything like that i mean the ideas was to flow it back to themselves and so i think those you know those those issues made us think that it wasn't a sort of bring in an expert and do a real valuation analysis but that we could point to the economic reality but i think you know certainly it's very clear here that there is a disparity thank you very much  first of all anyone fifty four stock at any given time is its underlying asset value the reason they didn't bring it up before is because it's in a private it's and i publish a ruling of the internal revenue service and the the kicks court is held on the ron howard case that once a position is taken by the service and out of something they can't go back and litigate against us eighty one fifty four says dis stock at all times has a fair market value call to its underlying assets well the significance of that is that this is the argument has been raised on appeal because a number of raised before that somehow or other the  acquisition of the disk stock should be dealt in some huge amount of income because it was worth so much money at the time it was acquired your question was well what they purchased the thing for within purchased and the stuff or anything was just annoying incorporated company eighty one fifty am we we have a company that we think we expect will generate such a commission payments for the foreseeable future that stock looks looks value eighty one fifty four says there is it's always book value but and that's why it's a gift tax ruling and of course it doesn't apply anymore because it's held invalid but the second part is that when disk commissions are paid then an additional gift is made each time but the fair market value of the disk stock  is just book value it doesn't get value to this commissions are paid and when they're paid that's when the gift took place it's not a veiled ruling anymore but that was the position and but they started out by saying the disc transaction has a business at that case is just gosh the receipt corporation you can think of this is as excess roth contributions what makes it different when it suggests the difference is simply that the disc commission is a safe harbor protected appellate portion so that that the regulation is invalid there is nothing to prevent the combination of two tax minimising statues and those that's the only purpose for them in the first place actually the w c c took the place the first circus so there was no privity because the kids could be shown to be in control but the bensons weren't control so the privity issue was before this court because the bonuses were in control the company ask you is that true at the time the six or eight litigation i mean i got as i understood the record we could reach that conclusion up to a certain point in time but was it true it weird we look for it being true at the time of the sixth circuit litigation and that's a very good question because at that time of the six circuit litigation the stock had already been transferred to the children and and so we thought our position was well they are in control the parents were in control during the time there was an the first circuit says well too late we're not going to accept any proof of this fact and and so that's the problem for us isn't it that the first circuit didn't want to open up the question but we know that your position in the first circuit was that by that time the control that passed the sons well our position was that to take a look this is a family operation and if you look at the family it's it's the same control it's just it just it's a deemed commission before services rendered and it's true the same as if it was a buy sell disk which actually purchased and resold property so it's not a sham it's it's it's it's designated to be a transaction for services even though flowing out of the country and that's where the whole is thank you thank you we kept both sides quite long but we appreciate your taking the time to answer our questions would take the matter under advisement and i think our last case is on submission so we