Compaq Computer Corporation and Subsidiaries - Page 18




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          being "In accordance with the provisions and subject to the                 
          limitations of the law of the United States."  In Biddle v.                 
          Commissioner, 302 U.S. 573, 382-383 (1938), the Supreme Court               
          articulated the rule that, for U.S. foreign tax credit purposes,            
          the taxpayer is the party who is liable for and charged with the            
          payment of tax.  That mandate has been incorporated into the                
          regulations at section 1.901-2(f)(1), Income Tax Regs.  In the              
          instant case, the ACT is levied on the corporation that pays the            
          dividend, regardless of whether that corporation or its                     
          subsidiary will make use of the corporate offset.  Accordingly,             
          it is appropriate to consider the corporation that actually pays            
          the dividend, and that is liable for payment of the ACT, as the             
          payor of the ACT for foreign tax credit purposes regardless of              
          the use of the corresponding U.K. credit.7                                  




          7    Respondent has further argued that, by disregarding the                
          corporate offset in determining the payor of the ACT for foreign            
          tax credit purposes, a U.K. corporation which is a subsidiary of            
          a U.S. corporation could, theoretically, receive a dividend from            
          one of its 10th-level subsidiaries.  Pursuant to the Income and             
          Corporation Taxes Act, 1988, sec. 247, that 10th-level subsidiary           
          could choose not to pay ACT on that dividend.  The U.K.                     
          subsidiary could then in turn remit that dividend to its U.S.               
          parent, pay the ACT, and allocate the corporate offset to the               
          10th-level subsidiary.  The U.S. parent could then claim a                  
          foreign tax credit for the ACT paid by its U.K. subsidiary,                 
          notwithstanding that, had the ACT been paid by the 10th-level               
          subsidiary, the ACT would not be creditable pursuant to the                 
          limitation of sec. 902(b).  Respondent's hypothetical is not                
          based upon the facts of the instant case, and we decline to rule            
          on it.                                                                      





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