though at times, even solicitor general daniel verrilli seemed to trip up over penalties and taxes, as he did here with justice stephen breyer. >> if they pay the tax, they are in compliance with the law. >> why do you keep saying tax? >> if they pay the tax penalty, they are in compliance with the law. >> tom: darren joins us now. microphone as lawed in the high court but no video camerasment darren, does this all boil down to an argue over a tax which is used to a fund a government versus what i want to call a penalty which would be an economic punishment? >> it does. because they want to make sure that basically, you know, if you are unhappy with your tax, you are not going to sue the supreme court. you're to the going to end up in the supreme court. this is their way to kind of narrow the exemption to this law that is designed to protect our tax system. >> tom: so we can call it a penalty hear and if we do that does the court seem inclined with what you heard today to rule that they don't have to wait until 2014 to decide the fate? >> this is their march madness. i really thought t