Texasgulf Inc. and Subsidiaries, as Successor in Interest to Texasgulf Inc. and Subsidiaries - Page 27

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          such as Inland Steel Co. v. United States, 230 Ct. Cl. 314, 677             
          F.2d 72 (1982); and also by Texasgulf, Inc. v. United States, 17            
          Cl. Ct. 275 (1989); (2) the OMT is not creditable unless its                
          predominant character is that of an income tax for each OMT                 
          taxpayer; and (3) for the OMT to be creditable, the processing              
          allowance must have been intended to compensate for                         
          nonrecoverable expenses.  We address each of these contentions              
          next.                                                                       
               1.   Extent To Which This Case Is Governed by Cases Decided            
                    Before the Regulations Were Issued and by Texasgulf,              
                    Inc. v. United States                                             
                    a.   Preamble to the 1983 Regulations                             
               Respondent contends that the OMT is not creditable because             
          it fails to meet standards of creditability applied in cases                
          decided before the regulations were issued.  Respondent contends            
          that the Preamble to section 1.901-2, Income Tax Regs., shows               
          that the regulations adopted prior case law.  We disagree; the              
          preamble does not support respondent’s broad use of the                     
          preregulation cases.                                                        
               The preamble to the final regulations under section 901,               
          T.D. 7918, 1983-2 C.B., 113, 114, states in part:                           
                    Under these final regulations, the predominant                    
               character of a foreign tax is that of an income tax in                 
               the U.S. sense if the foreign tax is likely to reach                   
               net gain in the normal circumstances in which it                       
               applies.  This standard, found in �1.901-2(a)(3)(i),                   
               adopts the criterion for creditability set forth in                    
               Inland Steel Company v. U.S., 677 F.2d 72 (Ct. Cl.                     
               1982), Bank of America National Trust and Savings                      




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