presented on certain issues and it was one hundred percent wrong the record contains that i mean in other instances the tax court fails to address significant record evidence in favor of this evidence was presented some of that stipulated and the evidence is not deduct those payments if the primary purpose was an ordinary and necessary business sense of the pay or factual determinations of the tax code or reviewed for a clearer and well this is a hypo it's not an insurmountable one this court overturns factual determinations of lower courts and for example now where these clearly erroneous determinations st the tax court set the payment for unsubstantiated the tax court was wrong in that regard the tax court it stayed at the v a failed to support its internal books and records a page seventy two of its opinion the tax court did not introduce evidence of receipts bank statements contracts for services rendered or documents establishing funds based on guarantees now that's one hundred percent wrong there are several exciting is the part the loan purchase but where where is there any evidence of actual payment because i think you would have to agree there has to be an actual payment of it for it to qualify for this exception specific check with respect to this agreement in the record in any testified that it was actually paid your honor i believe that there are two places you can look to in the records that show the payment st would be the guaranteed documents that are cited with respect to those but also the individual payments and check so in light of the about the funding that there is no evidence is transactions can't be affirmed it's just not supported there is evidence of these transactions that you put in the trial correct however the tax court's opinion doesn't address significant record evidence as i'm i will get you now so in the work a context it should be clear there's always going to be a legations they're not one of the h p science to guarantee it doesn't know that it will make any payments or how much they will be the testimony is that the agency did not expect to make anywhere near sixty million dollars in payments p and the moat of the agency happens for entering into these transactions now the tax court doesn't address on the effect beyond saying that beyond saying that the b h p was dismissing it as concern and doesn't address what's actually in the record that's not sufficient evidence to affirm the court's finding further one other brief point on this issue the tax court also suggested that the presence of prior guarantees stablish is that some pattern provisions between all of but that the issue is really the ordinary test and there are multiple lines of cases on this is not primarily meant to be a deal with whether an expense is commonplace in the industry the purpose of that is to  ordinary and immediately deductible expenses and capital expenses but even if you are looking at the question of whether the expense is commonplace in the industry necessarily if you drive any contract narrowly enough you're going to say yeah this is  e to this particular circumstance here these are expensive prepayment expenses to protect access to credit and the number of cases which cited that deal with that in the working context and that's not by itself a reason to declare the expense not ordinary how do you get the definition how do you get around the definition of ordinary in section one hundred and sixty two dollars a that says the transaction which gives rise to it must be of comment or frequent occurrence in the type credits i mean it's a transaction between these two parties with you make terms that you don't see anywhere else right anything not a form transaction would fall and here you've got transactions that are simply for the benefit  fits me for the purpose of preserving access to credit there's no dispute i think that most companies including construction contractors need access to credit record also had testimony regarding th and their position that the court ignored evidence of substantiation we disagree with that we've said it in our brief but but the court doesn't even need to reach the issue of substantiation because even if  p had substantiated all of the amounts that they claimed that would overcome the tax court's finding that the purported business expenses were not ordinary necessarily and that the purported debt w expenses has to show that the that it was necessary to protect the taxpayers own business and the benefit to the person whose expenses were paid is only incidental on that point the harm that the also found that being he had had a history of entering into substantial guarantees that before two thousand and two when there is no claim that it that it was forced to make a guarantee had been provided any cogent explanation of how the guaranteed subsequent to two thousand to which it also claims  entitled to a presumption of correctness and the tax code finding that they did see didn't overcome that presumption is not clearly erroneous is there some evidence supporting their examples in their belief but as was pointed out earlier one of those examples involves a contract they don't cite any evidence that they ever actually paid the amount stated in the contract in six hundred and fifty dollars pages of the h e's post trial briefing that it would have alerted the tax court that that evidence was in the record and that and that it showed payments on bail a bank guarantee