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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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