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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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