Acme Steel Company (formerly known as Interlake, Inc., and now known as Acme Metals, Inc.) and Consolidated Subsidiaries - Page 61

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          the continuation of the prespinoff affiliated group; Interlake,             
          as a result of the restructuring and spinoff, became the common             
          parent of a new affiliated group.                                           
               Even if respondent’s concession that Interlake was the                 
          common parent were correct as a matter of law, which we doubt,              
          the treatment of petitioner as the common parent was based on the           
          regulations as they applied to the facts of the restructuring.              
          See supra pp. 33-37.  In other words, any error of respondent was           
          an error in his interpretation of the consolidated return                   
          regulations, not an error in performing his clerical                        
          responsibilities that would give rise to nonrebate refunds.                 
               Rebate v. Nonrebate Refunds                                            
               Other cases applying the rebate/nonrebate distinction                  
          provide further support for the result we arrive at.  The cases             
          addressing the rebate/nonrebate distinction illustrate that, even           
          though respondent’s payment of the tentative refunds may have               
          been erroneous, it was not the sort of error that leads to a                
          nonrebate characterization.  As we have said, rebate refunds are            
          refunds paid because of a substantive recalculation by the                  
          taxpayer or Commissioner that the tax due is less than the amount           
          shown on the return.  O’Bryant v. United States, 49 F.3d at 342.            
          Nonrebate refunds, on the other hand, are issued because of                 
          mistakes, typically clerical or computer error, that are                    
          invariably made by the Commissioner.  Id.                                   






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