§ 31.6402(a)&emdash;2(a)(ii) (2013). Here, the Hospital did not file a claim for a refund. Plaintiffs allege that, instead, the Hospital used the value of its own and Plaintiffs’ potential refund claims as a bargaining chip in negotiations with the IRS, resulting in a more favorable Settlement for the Hospital. Assuming the allegations to be true, the Hospital received a de facto refund, or at least value for relinquishing its own refund claims related to Plaintiffs, without considering Plaintiffs, who received nothing. Therefore, a reasonable jury could find that the Hospital assumed a fiduciary duty to file for a refund on behalf of Plaintiffs, or otherwise reimburse Plaintiffs, just as if it had filed for a refund. See Muller-Paisner v. TIAA, 528 Fed.Appx. 37, 41-42 (2d Cir.2013) (<HOLDING>). The Complaints also allege that the Hospital
holding that a reasonable jury could conclude that a party had voluntarily assumed a fiduciary duty where none existed before holding record supported jury finding that fiduciary relationship existed between bishop diocese and plaintiff and that such duty was breached holding that plaintiffs were entitled to a jury trial on claim of breach of fiduciary duty where underlying claim was a common law negligence action holding that these statutes are not intended to create a duty where none exists but to preserve any that do exist holding that standing existed