- 19 - 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.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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