and misapprehended by the district court based on the government's misconstruing the record to a farm summary judgment and those instances where it hasn't misconstrued the evidence there isn't any showing is non plant taken by the plan from quote the reserve unquote phrase which isn't defined in the chip and it did so because employer the payment company had failed to pay its premiums the plan has discretion to do exactly that the employer does the plan says it article three section three point which you will find a document forty five that the plan may terminate an employer that fails to pay its contribution we all know maybe mange may or may not the plan chose not to terminate acting in accordance with article three dollars section th dollars taking the premium from the reserve instead this exhibit of the government shows only vat and show a bank account controlled by the employer for its own use to pay its current expenses the employer can't cure a failure to pay its contribution on time ordering the plan to make the payment late from its reserve or any reserve only plan can do that it has the discretion to terminate for  doesn't bear the government's interpretation which again they say it's a effectively a bank account and individual employer controls for its own use and benefit not through document forty five ni doctors lows are and spec nolo mr blah wise explains this exhibit and a small number of other instances as a resolution of a filed lawsuit about i mean it seems the government's position is that the loss of the the losses in towns are simply used for for employers or employees to be able to get their money back establishes substantial similarity and in fact i think it proves overwhelming this similarity ninety nine percent of the similarity between our plan dr turn of the transaction and these two instances and again i can answer about an allegation of collusion on the part of an employer who is not a doctor i would respectfully that would be the burden is on the government prosser tells us documents on the one hand the benefits payable in the plan are not subject alienation sale transfer but it goes on to say that the participant can designate a been a fishery and give up his right subsequently to change the beneficiary and it seems to me that in the th circuit case and these marketing case that's pretty much exactly how the participants of this very plan cashed out and i recognize that your expert mr weber said sort of notwithstanding the plan documents there's no way to cash out but how can he testified that wii's marketing taxpayer testified a couple things about getting payments while he was alive when he said it was a medical reimbursement expansion i was told i could get while i was alive which is an after school barricades no evidence for that and then and then the court that payment i understand that to be part of the fifteen dollars instances that just jeff flower was testify to that were outside the plant is there a particular part of the plan language that you're citing that conveys to you that into a marketable asset well granted a life insurance death benefit has to be paid to someone to laugh beneficiary and return them  of that no wally anation no conversion and i say that dr turner knowledge and understanding is relevant here despite the government's argument that it is irrelevant because they hold out b s marketing well that very thing they say the bees marketing taxpayer was told he couldn't convert and alienate and that he understood and did so and then they tell you to decide this case and forgive me i'm said i can't do it and in fact the ambiguous testimony that the district court found compelling enough to grant summary judgment all in sad that mr hobson self acknowledges that there no conversion possible or urged the court to read that ambiguous testimony as carefully as we have and to see where that occurs says at one point there is no conversion possible same no access to his contributions except as a death benefit paid to his beneficiary if he lives long enough then he is taxed disadvantaged all together by the transaction not tax at great length about the language of a plan and it's important to keep our focus on what this case is really about which is not the language of the plan at all this is a case at the district court held about a tax for specifically about whether a taxpayer who participates in an abusive charge action that resembles something that the i r s has designated as one to watch must file return and that is a very broad standard it is not granular it does not depend on how familiar the individual taxpayer is with the niceties of the plan and with the provisions of the plan documents with the marketing materials of the plan it has to do with whether the plan itself as generally administered is substantially similar to a not exposed to any potential sixty seven thousand and seven dollars a penalty which is the penalty that we're discussing here if you fulfill your statutory obligation to file the form and disclose your participation in a plan that the i r s might want to look at you then give the i r s the opportunity to look at it and if your participation in the plan is legitimate if as my opponent has contended the plan is materially different my hang up i guess i'm sort of a cash out piece of this but it seems to me like maybe the most pointed dispute between you and mr hood is about the possibility of cash out can you kind of help me everything that taxpayers council says about cash out is correct the remaining balance of the factors that would trigger the obligation to disclose and under the treasury regulation a notice ninety five dollars dash thirty four  here so even if he's completely correct and there is no cash out option the trick the duty to disclose would still have been triggered by enough of the other factors now addressing your question the trust administrator advised at least some employees that they could get benefits by selling their share of the annuity st cash value that's a finding by the district court and we have evidence of that in the record  reach and to the fund is that they had deposited in the annuity and direct the use of those funds and our evidence discloses that as well and there was no error in the district court's interpretation of that evidence which is again consistent with these marketing now if if we're splitting hairs over whether a settlement is prompted by litigation or prompted by request or to resolve a dispute or simply to respond to an inquiry i submit that we've gone too far because the query here is far more basic are these transactions substantially similar and look at the other factors that show that they are you're looking at st of all is your plan invested in variable life or universal life insurance contracts on the lives of covered employees this plan what this plan expressly said this is a combination of a group term the way we're not fighting to seize because it's evidence is relevant to this past paper is knowledge we are citing to these because it's the same plan and the question before the court is whether that plan this same plan we're looking  here is sufficiently similar to the abusive transaction described didn't notice nine thousand five hundred and thirty four to trigger the reporting obligations and the evidence here is overwhelming that it was because we read that similarity broadly in favor of disclosure you've got the universal life insurance contract you've got an insurance policy owned by the trust you've got large influence contributions relative to the amount of term insurance that would be required to provide the death benefit under the arrangement here you have a remarkable split where ninety seven percent of the cash paid into this plan funded an investment vehicle well maybe three percent of it paid insurance premiums whether there's a question on the point whether a truck to administrative or may obtain cash by cashing in or withdrawing value from the insurance policies does not defeat summary judgment on the question of whether the rest of the plan resembles this notice enough to trigger the disclosure obligation the key factor that the v's court found and that the district court here agreed with was that the trust maintained a separate accounting of assets by employer the benefit that a participant would receive would be correlated to what they paid and that is called experience rating and that's an absolute no no in these it's what makes the transaction abusive it changes from insurance where your risk is pools and everyone who pays and is entitled to equal treatment to more participation in the actual fund where you get back what you pay and that is in have it is here it is clear from both what the district court considered here and the experience of other participants in these the testimony of the insurance representatives even on this record that accounts were kept by employer employee contributions were tracked and the parties were at all times aware of who play successful and i don't know if that to your point judge knew some about withdrawing a value from the policy but the the these court was certainly persuaded that the ability of a party to reach  and touch their money and apply it as they directed is not like life insurance if you or i were to purchase it we cannot call up the insurance company and say oh take something from here move it to there it's not a fund that they kept this information as an accommodation for the participants or the companies employers and i'm listing clear on exactly what that accommodation was for was there any explanation  in the record board not that i'm aware of your honor but the presumption that the court took from it was that there accommodating the needs of the participants to access their  and track their contributions and track the progress of the benefits that they were accruing and there is a point of evidence in the record which has already been cited where a party had at their own direction  transferred from the investment vehicle out into the insurance onto the insurance side of the plan to pay a premium which is the equivalent of your buying insurance and you thought paying your premiums but within the insur premiums managed to continue to be paid on that and that is that is enough to make the r s's that's enough to make the i r s say is this really insurance or under section eighty three of the internal revenue code or deferred compensation under section four hundred and forty five of the internal revenue code so your ability to withdraw value from that can be potentially defer compensation and can even be property depending on the form in which you are taking that value and that's why we need disclosure that's why you need to file the form and again when you file the form may be such accept even if you credit all of the evidence for a point that the taxpayer is raising here you still do not avoid the obligation to disclose the transaction whether or not the plan differs on the merits determination that the court needs to make here how this taxpayer felt about the plan what he believed what he was told what he understood is not material to this case with all that evidence for the tax court proceeding whe this is a case about whether he should have told the i r s what he was doing and the district court made no errors in concluding that he should have can overcome them yes i can your honor and thank you for the question i'm surprised at that statement we say in our reply brief that the government runs away from the eleven or twelve criteria of if it's you know if it's rule of six out of eleven carries the day we win because there are apps and all many of the craftier most of them i agree with you that conversion the ability of a living because it defeats the purpose of the four hundred and nineteen exemption which is provide a bona fide insurance to smaller and in a welfare benefits plan and so we stand on our showing their experience rating are asked tells taxpayers and professionals exactly what experience rating is because what the government says it is in this case and their showing below is not experience writing they have shown you only some bookkeeping some position that you ought to be able to forecast what we're going to say alicia transaction is four and five years after the fact when we say to use your honour's to this court that we don't even abide we don't can't work we're prompting you not to pay much attention to it that's what they said and embrace our urge the court to look at vision marketing these marketing had a medical reimbursement benefit that was cashable and accessible to the living employed that is the opposite of what this plan provides and there is no plan provision that provides for a medical reimbursement benefit benefit the fact that that's in the vs marketing case proves that the provisions of the plan and these differ from the plan provisions we because it is to this court in this case the government chose not to give you the bees marketing plan i don't know why they failed their burden