BankAmerica Corporation, as successor in interest to Continental Bank Corporation, as successor in interest to Continental Illinois Corporation - Page 19

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          If a contract is based on a mutual mistake, a defense to                    
          reformation or rescission is not that the contract with the                 
          mistake is more beneficial to the defending party.  Similarly, it           
          is no defense to petitioner's motion for respondent to decide               
          that the outcome of the case with the stipulation based on a                
          mutual mistake is more favorable to respondent than the outcome             
          petitioner proposes.                                                        
               Respondent cannot claim prejudice by petitioner's proposed             
          treatment of the interim interest, respondent having included the           
          ITC amounts in question in the 1992 computations, Dorchester                
          Indus. Inc. v. Commissioner, supra, and petitioner having raised            
          the issue with respondent shortly after discovering the error.              
          See 13 Williston, Contracts, sec. 1578, at 507 n.5 (3d ed. 1970).           
               Finally, as we discuss below, while it is uncontested that             
          the 1994 computations correctly reflect payments so as to                   
          determine tax liability for the deficiencies, they do not                   
          correctly reflect payments so as to determine the proper interest           
          liability.  According to respondent, if a change of heart takes             
          place, that is enough to eliminate the existence of a mutual                
          mistake even though in point of fact the change of heart proves             
          to be incorrect.  Respondent is in effect saying that, even if              
          petitioner's contention as to the substantive law is correct,               
          respondent's changed position remains unassailable.  We think               
          respondent's position creates a catch-22 situation and is                   
          incongruous to say the least.                                               




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