Nestle Holdings, Inc. - Page 14




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            tentative refunds.  In computing the deficiency and overpayment                            
            for 1985, however, the parties did not address in the 1996                                 
            stipulation whether a tentative refund for 1985 was to be treated                          
            as a reduction to the tax assessed and paid for 1985.                                      
                  Although it is evident from both stipulations that the 1985                          
            tax liability should be computed without considering the                                   
            carrybacks not in issue, it is unclear from the stipulations                               
            whether the parties also meant for a tentative refund for 1985 to                          
            reduce the tax assessed and paid.  Because the parties have not                            
            clearly set forth the substance of their agreement and since we                            
            cannot discern the intent of the parties from the ambiguous                                
            language of the stipulations, we will not construe an agreement                            
            to exist with regard to the disputed issue.                                                
                  Having concluded that the 1996 and 1999 stipulations do not                          
            address the issue of whether to treat the subsequent tentative                             
            refund as a reduction to the tax assessed and paid, we would                               
            normally look to relevant statutory and case law to determine how                          
            to treat the subsequent tentative refund in the deficiency                                 
            computation.  However, because respondent has conceded an                                  
            overpayment of $36,441,904 in the event that the Court does not                            
            sustain his interpretation of the settlement agreements, we hold                           
            that petitioner is entitled to a refund of $36,441,904.16                                  



                  16  Petitioner agrees that the cash or credit refund should                          
            be $36,441,904.                                                                            





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