Nestle Holdings, Inc. - Page 11




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            resulted in the subsequent tentative refund for 1985, are not to                           
            be taken into account by the Court in redetermining the 1985 tax                           
            liability,12 respondent argues that the 1996 and 1999                                      
            stipulations provide for the tax assessed and paid for the 1985                            
            tax year to be reduced by the subsequent tentative refund.13                               
                  Respondent first contends that the 1999 stipulation provides                         
            that the 1996 stipulation “‘controls the manner in which the                               
            income tax at issue for the 1985 taxable year will be computed.’”                          
            Respondent then argues that because the parties agreed in the                              
            1996 stipulation that the initial tentative refunds for the 1983                           
            and 1984 tax years would be treated as a reduction to the tax                              
            assessed and paid, the subsequent tentative refund for the 1985                            
            tax year should be treated in the same fashion.                                            
                  Petitioner agrees that the 1999 stipulation directs the                              
            Court to consider the language of the 1996 stipulation.                                    
            Petitioner, however, argues in a memorandum that the 1996                                  
            stipulation says “nothing at all” about whether the subsequent                             
            tentative refund is to be treated as a reduction to the tax                                
            assessed and paid for 1985.  Petitioner further argues that the                            
            “absence of any such language for 1985 is not only conspicuous,                            



                  12  Both parties agree that the NOL carrybacks, which                                
            resulted in the subsequent tentative refunds, are also not in                              
            issue before the Court.                                                                    
                  13  Our use of the singular form of the term “subsequent                             
            tentative refunds” refers to the subsequent tentative refund for                           
            the 1985 tax year.                                                                         




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