- 43 - facts as they actually existed when the tentative refunds were paid, rather than how they were assumed to exist by the bankruptcy court. Only when we consider the facts as they existed at the time of payment can we conclusively and reliably characterize the tentative refunds as either rebate or nonrebate refunds. For the same reason, we do not believe that Interlake Corp. v. Commissioner, supra, is dispositive of the case at hand. In Interlake Corp., we held that respondent could not recover from Interlake the tentative refunds paid to petitioner. Respondent conceded that refunds paid to the “wrong taxpayer” or an “unauthorized representative of the taxpayer” were nonrebate refunds and that Interlake was the continuing common parent of the prespinoff affiliated group. We reasoned that petitioner, as the former common parent of the prespinoff affiliated group as conceded by respondent, was not an “authorized recipient” of the tentative refunds under section 1.1502-78(b), Income Tax Regs. Accordingly, the tentative refunds were nonrebate refunds as to Interlake which could not be included in the computation of a deficiency as to Interlake. Id. at 115. Our reasoning was based on two assumptions premised on respondent’s concession of the common parent issue: (1) That Interlake was the continuing common parent of the prespinoff affiliated group (and petitioner was the common parent of a new postsplit affiliated group), and (2) that Interlake’s status as the common parent of thePage: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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