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of the three events which trigger a cash refund is within
Arkla's control, such that Arkla is in control of the
timing and method of repayment. See Commissioner v.
Indianapolis Power & Light Co., 493 U.S. at 209. To the
contrary, Arkla retained no right to insist upon the return
of the payment so long as Malibu does not terminate the
Contract, and the wells do not become substantially
depleted.
Petitioners argue that Malibu lacks complete dominion
over the settlement payment. According to petitioners,
Arkla could refrain from ordering any natural gas under the
Contract, and could await the substantial depletion of the
wells. In this way, petitioners argue, Arkla could force
Malibu to make a cash refund of the settlement payment.
Petitioners assert that this is possible because Arkla is
not obligated to purchase any gas under the Settlement
Agreement.
We disagree with the premise of petitioners' argument.
In fact, Arkla is obligated to take a minimum volume of gas
per year under the Contract. Under the Settlement Agree-
ment, however, Malibu has agreed to waive any claims
relating to or arising out of the Contract, including
Arkla's failure to take or pay for gas through June 30,
1990. After that date, there will be no waiver of Arkla's
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