Acme Steel Company (formerly known as Interlake, Inc., and now known as Acme Metals, Inc.) and Consolidated Subsidiaries - Page 43

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          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 the                     






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