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Court reversed its holding that the OMT processing allowance does
not effectively compensate for expenses that may not be recovered
under the OMT as a matter of law. Texasgulf, Inc. v. United
States, No. 532-83T (Cl. Ct. Apr. 16, 1992) (order partially
denying summary judgment). Thus, the U.S. Claims Court treats
that issue as a question of fact. The U.S. Claims Court left for
decision based on an appropriate record the question whether the
OMT processing allowance effectively compensates for the
disallowed deductions. Texasgulf, Inc. v. United States, No.
532-83T (Cl. Ct. Apr. 16, 1992) (order partially denying summary
judgment). Our record enables us to make a factual finding on
this point; as discussed above, we have found that, judged on the
predominant character of the OMT, the processing allowance is
likely to exceed nonrecoverable expenses.
2. Whether the Predominant Character of the OMT Must Be An
Income Tax in the U.S. Sense for Each Taxpayer
Respondent contends that, for a tax to be creditable, its
predominant character must be that of an income tax in the U.S.
sense for each taxpayer subject to it. Respondent bases this
argument on the following language from the regulations: "a tax
either is or is not an income tax, in its entirety, for all
persons subject to the tax." Sec. 1.901-2(a)(1) (flush
language), Income Tax Regs. We disagree. This phrase does not
mean that, to be creditable, a tax must be an income tax for each
taxpayer subject to it; it means that a tax is creditable by
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