- 32 - 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 byPage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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