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parties were attempting to stipulate to the amount of the credit
and only the legal question would be presented to the Court.
After the Court of Appeals’ reversal of the lower court in
Fairchild, respondent decided to concede the legal issue
(regarding funding). Respondent, for the first time, contended
that, based on the appellate court’s rationale, petitioner was
required to show the amount of research expenses in connection
with a particular line item in the fixed-price Government
contracts. In that regard, petitioner, under respondent’s
approach, would be more specifically required to show that the
contract language for that item supports the conclusion that
payment is contingent on development of a specified product or
result, so as to have been paid contingent on the success of the
research.
We note that petitioner’s grievance is not without
substance. After all, respondent’s engineer had reflected an
adjusted (reduced but apparently agreeable to the engineer)
amount of research credit in her report. Those circumstances had
provided petitioner with comfort concerning the resolution of the
quantitative aspects of the research credit controversy.
Ultimately, however, we view the question here as one of timing
and prejudice. This is so because no enforceable agreement had
been entered into by the parties. Accordingly, we must consider
whether respondent timely raised the requirement and whether
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