gets interesting at end
solid (not new) response and roadmap in re to our arguments about state law label and control - casting aside Bob Richards and that hot mess.
Under the Agreement here, an affiliate like the Bank
that incurs a net operating loss is “entitled” to a refund
for the same amount that it would have received if filing
taxes separately...Once UWBI
receives a refund from the IRS, it “shall” recalculate
each group member’s tax liability for the relevant year
as if the refund claim had been part of the original tax
filing, and it “shall” pay the refund to the proper subsidiary (or subsidiaries) as allocated “within 10 business
days.”
The Agreement’s mandatory instructions provide the “control” that suffices for the creation of an
agency relationship.
UWBI “may be an agent although the principal
lacks the right to control the full range of the agent’s
activities, how the agent uses time, or the agent’s exercise of professional judgment.
Use of the
term “agent” in the UWBI group’s tax allocation Agreement thus was the most straightforward way of disavowing any intent to produce the result that petitioner
advocates.
