Square D Company and Subsidiaries - Page 24




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               Treaties and statutes are viewed under the Constitution as             
          on the “same footing”.  Whitney v. Robertson, 124 U.S. 190, 194             
          (1888) (cited in Am. Air Liquide, Inc. & Subs. v. Commissioner,             
          116 T.C. 23, 28-29 (2001)); see secs. 894(a), 7852(d).  Indeed,             
          when a treaty and statute relate to the same subject,                       
               the courts will always endeavor to construe them so as                 
               to give effect to both, if that can be done without                    
               violating the language of either; but if the two are                   
               inconsistent, the one last in date will control the                    
               other, * * *  [Whitney v. Robertson, supra at 194.]                    
          For the reasons outlined below, we do not believe that section              
          267(a)(3) and section 1.267(a)-3, Income Tax Regs., are                     
          inconsistent with Article 24(3).9                                           
               Article 24(3) provides as follows:                                     
                    A corporation of a Contracting State, the capital                 
               of which is wholly or partly owned or controlled,                      
               directly or indirectly, by one or more residents of the                
               other Contracting State, shall not be subjected in the                 
               first-mentioned Contracting State to any taxation or                   
               any requirement connected therewith which is other or                  
               more burdensome than the taxation and connected                        
               requirements to which a corporation of that first-                     
               mentioned Contracting State carrying on the same                       
               activities, the capital of which is wholly owned by one                
               or more residents of that first-mentioned State, is or                 
               may be subjected.                                                      

               9 We note that the rule establishing parity between treaties           
          and Federal laws concerns statutes rather than Treasury                     
          regulations, and that petitioner is challenging the regulation in           
          question rather than the statute.  However, we need not, and do             
          not, decide whether the regulation is equivalent to a statute for           
          these purposes, because we find that it does not violate Article            
          24(3).  See Blessing & Dunahoo, Income Tax Treaties of the United           
          States (1999), par. 1.03[1][a][ii]; cf. Am. Air Liquide, Inc. &             
          Subs. v. Commissioner, 116 T.C. 23 (2001); UnionBanCal Corp. v.             
          Commissioner, 113 T.C. 309 (1999).                                          





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