Texasgulf Inc. and Subsidiaries, as Successor in Interest to Texasgulf Inc. and Subsidiaries - Page 32

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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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