cessive profits. If the Board determines that the contractor has realized excessive profits in the same amount as that determined by the Regional Board and if the contractor has executed an agreement for the refund of the amount so determined to be excessive profits, the Board will authorize the Regional Board to execute the agreement on behalf of the Government.

1474.5 Finality of agreement.-Subject to the provisions of section 1474.6, an agreement by a contractor to refund the amount determined by a Regional Board or the Board to be excessive profits shall be conclusive according to its terms; and except upon a showing of fraud or malfeasance or a willful misrepresentation of a material fact, (a) such agreement shall not for the purposes of the act be reopened as to the matters agreed upon, and shall not be modified by any officer, employee, or agent of the United States, and (b) such agreement and any determination made in accordance therewith shall not be annulled, modified, set aside, or disregarded in any suit, action, or proceeding.

1474.6 Modification of terms of payment provided in agreement.—(a) Filing of requests. Any request for an extension of time to pay any sum due under an agreement shall be filed by the contractor with the Board or Regional Board which made such agreement, and a copy of any such request filed with a Regional Board shall be filed by the contractor with the Board. In all cases, at the time a request is filed a copy thereof shall be mailed by the contractor to the collecting agency designated in the agreement.

(b) Approval of requests.-Authority to extend the time to pay any sum due under an agreement is hereby reserved to the Board. Any request for such an extension filed with a Regional Board will be forwarded by such Regional Board to the Board with the recommendation of the Regional Board.

(c) Conditions.-No agreement for the elimination of excessive profits shall be modified for the purpose of extending the time for payment of any amount therein provided to be paid unless:

(1) The request for such extension of time is made by the contractor before the date upon which such payment is due.

(2) The contractor establishes by satisfactory evidence that it is unable to make such payment within the time provided therefor in the agreement, or that payment within the time provided in the agreement would impose upon the contractor an undue hardship which was not reasonably foreseeable when the agreement was made.

(3) The Board determines that the public interest will not be prejudiced by the granting of additional time.

(4) The contractor agrees to pay interest at the rate of 4 per centum per annum upon the amount with respect to which the time for payment is extended, such interest to accrue from and after the due date for such payment to the extended date therefor.

(5) The contractor agrees to comply with such other terms and conditions as the Board shall deem necessary to protect the interests of the Government.

1474.7 Nullification of agreement.-(a) Filing of requests.-Any request that an agreement to eliminate excessive profits be set aside and declared null and void pursuant to section 105 (d) of the act shall be filed by the contractor with the Board, and shall contain a full and complete statement of the facts upon which the contractor relies, including copies of supporting documents, if any. Upon request of the Board, the contractor shall file any additional information or documents which the Board may consider necessary or pertinent. If a request that an agreement be set aside is filed before the amount payable thereunder is fully paid, the contractor shall, at the time of filing such request with the Board, mail notice of such filing to the collecting agency designated in the agreement.

(b) The filing pursuant to this section of a request that an agreement be set aside shall suspend the obligation of the contractor to pay any sum due under the agreement until the Board shall have acted upon such request. A determination by the Board that an agreement shall be set aside and declared null and void pursuant to the provisions of section 105 (d) of the act shall be embodied in an order to that effect.

Sec.

1475.6

Modification of order to extend time for payment.

AUTHORITY: Sections 1475.1 to 1475.5 issued under section 109, Pub. Law 9, 82d Cong. Interpret or apply sections 105 and 107, Pub. Law 9, 82d Cong.

1475.1 Statutory provision.-Section 107(e) of the Act provides in part as follows:

The Board may review any determination in any case not initially conducted by it, on its own motion or, in its discretion, at the request of any contractor or subcontractor aggrieved thereby. Unless the Board upon its own motion initiates a review of such determination within ninety days from the date of such determination, or at the request of the contractor or subcontractor made within ninety days from the date of such determination initiates a review of such determination within ninety days from the date of such request, such determination shall be deemed the determination of the Board. If such determination was made by an order with respect to which notice thereof was given by registered mail or by certified mail pursuant to section 105(a), the Board shall give notice by registered mail or by certified mail to the contractor or subcontractor of its decision not to review the case. If the Board reviews any determination in any case not initially conducted by it and does not make an agreement with the contractor or subcontractor with respect to the elimination of excessive profits, it shall issue and enter an order under section 105(a) determining the amount, if any, of excessive profits, and forthwith give notice thereof by registered mail or by certified mail to the contractor or subcontractor. The amount of excessive profits so determined upon review may be less than, equal to, or greater than, that determined by the agency of the Government whose action is so reviewed. [Matter in italics added by Pub. Law 86-507, 86th Cong., approved June 11, 1960.]

1475.2 When unilateral order procedure used. The procedure set forth in this Part will be used when a Regional Board or the Board determines that the contractor has realized excessive profits for a fiscal year and the contractor is unwilling to enter into an agreement for the refund of such excessive profits.

1475.3 Determination by Regional Board.(a) Class A cases.-When a Regional Board determines in a Class A case that the contractor has realized excessive profits and the contractor is unwilling to enter into an agreement for the refund of the amount so determined to be excessive profits, the Regional Board will notify

the Board of such determination and submit a report of the case to the Board. The Board will thereafter cause the case to be reassigned to the Board for further proceedings, unless the Board is of the opinion that further meetings between the Regional Board and the contractor might result in an agreement between them. In the latter event the Board will direct the Regional Board to conduct further proceedings in the matter. When the Board causes the case to be reassigned to the Board, the applicable procedure will be that set forth in § 1472.4 of this subchapter.

(b) Class B cases.-(1) When a Regional Board determines in a Class B case that the contractor has realized excessive profits and the contractor is unwilling to enter into an agreement for the refund of the amount determined to be excessive profits, the Regional Board will issue and enter a unilateral order determining the amount of such excessive profits and give notice thereof by registered mail to the contractor. The Board may review such determination upon its own motion, or, in its discretion, at the request of the contractor.

(2) General rules applicable to filing by the contractor of a request for review of such determination are set forth in § 1472.6 of this subchapter.

(3) If, within 90 days after the date the notice of the order is mailed to the contractor, the Board does not upon its own motion initiate a review of such determination and the Board does not receive from the contractor a request for a review, such determination and order will be deemed to be the determination and order of the Board on the ninetieth day after notice of the order was mailed by the Regional Board.

(4) If the Board does not initiate a review of a determination of a Regional Board within 90 days after the date of receipt of a timely request from the contractor for a review, such determination and order will be deemed to be the determination and order of the Board on the ninetieth day after the Board received the request from the contractor: Provided, That, if notice of the decision of the Board not to review such determination is mailed by registered mail to the contractor before such ninetieth day, such determination and order will be deemed to be the determination and order of the Board on the day of mailing of such notice.

(5) In every case that the determination of a Regional Board is deemed to be the determination of the Board pursuant to the provisions of subparagraph (3) or (4) of this paragraph, as the case may be, the Board will give notice by registered mail to the contractor that the Board has decided not to review the case.

(6) If the Board decides to review the determination, the Board will so advise the contractor and the applicable procedure will be that set forth in § 1472.4 of this subchapter.

1475.4 Determination by Board.-When the Board determines in a Class A case, or upon review of a unilateral order in a Class B case, that the contractor has realized excessive profits for a fiscal year and the contractor is unwilling to enter into an agreement for the refund of such excessive profits, the Board will issue a unilateral order determining the amount of excessive profits to be refunded and give notice thereof by registered mail to the contractor.

1475.5 Tender of refund by contractor.(a) Statutory provision.-Section 105(b)(2) of the act provides in part as follows:

*** When The Tax Court of the United States, under section 108, redetermines the amount of excessive profits received or accrued by a contractor or subcontractor, interest at the rate of 4 per centum per annum shall accrue and be paid by such contractor or subcontractor as follows: ***

(C) When the amount of excessive profits determined by the Tax Court is less than the amount determined by the Board, interest shall accrue and be paid on such lesser amount from the thirtieth day after the date of the order of the Board to the date of repayment, except that no interest shall accrue or be payable on such lesser amount if such lesser amount is not in excess of an amount which the contractor or subcontractor tendered in payment prior to the issuance of the order of the Board.

(b) Manner of making tender of refund.In order to avoid the accrual of interest in the manner set forth in section 105(b)(2) (C) of the act, the contractor shall make a tender of refund by certified check or cashier's check payable to the order of the Treasurer of the United States, such check to be tendered to the Chairman of the Board prior to the date the Board mails its notice of the unilateral order of the Board pursuant to section 1475.4 or the date the Board mails notice of its decision not to review a unilateral order of a Regional Board pursuant to section 1475.3(b). 1475.6 Modification of order to extend time for payment.-(a) Due date under order.For the purposes of this section, the day

upon which an amount of excessive profits becomes due and payable under an order shall be referred to as "the due date" of such payment. When excessive profits are determined by an order of the Board, the due date is the day such order is issued and entered. When excessive profits are determined by an order of a Regional Board, and no review of such determination and order is initiated by the Board, the due date is the day such determination and order of the Regional Board is deemed the determination and order of the Board (see § 1475.3(b)). In either case, pursuant to section 105(b) (2) of the act, interest does not accrue and become payable on the amount of such excessive profits until the thirtieth day after the due date.

(b) Filing of requests.-Any request for an extension of time to pay any sum due under an order shall be filed by the contractor with the Board or Regional Board, whichever issued such order, and a copy of any such request filed with a Regional Board shall be filed by the contractor with the Board. In all cases, at the time a request is filed a copy thereof shall be mailed by the contractor to the collecting agency designated by the Board in its notice of order or in its notice that the order of a Regional Board is deemed the order of the Board.

(c) Approval of requests.—Authority to extend the time to pay any sum due under an order is hereby reserved to the Board. Any request for such an extension filed with a Regional Board will be forwarded by such Regional Board to the Board with the recommendation of the Regional Board.

(d) Conditions.-No extension of time for payment of any amount due under an order shall be granted unless:

(1) The request for such extension of time is made by the contractor within thirty (30) days after the due date, except that after an order has been modified to extend the time for payment of any amount due thereunder, a request for a further extension of time for payment of any amount payable under the order as so modified shall be made before the date upon which such payment is due.

(2) The contractor establishes by satisfactory evidence that it is unable to make such payment on or before the due date or that payment on or before such date would impose upon the contractor an undue hardship which was not reasonably foreseeable at or before the due date.

(3) The Board determines that the public interest will not be prejudiced by extending the time for payment.

The Board shall have the right to impose such other terms and conditions as it shall deem necessary to protect the interests of the Government.

(e) Effect of modification of order.-No modification of an order for the purpose of extending the time for payment of any amount

due thereunder shall affect the obligation of the contractor pursuant to section 105 (b) (2) of the act to pay interest on such amount from the thirtieth day after the due date. The modification of an order pursuant to this section shall not preclude the contractor from filing a petition with the Tax Court of the United States pursuant to section 108 of the act and within ten (10) days thereafter filing a good and sufficient bond, as provided in said section, to stay the execution of the order as so modified.