- 93 - Since that case turned on the absence of a legal liability for the foreign withholding tax on the part of the withholding agent and the U.S. taxpayer as well, id. T.C. Memo. 1991-66 at n. 46, the inapplicability of Example (3) was obvious. Certainly the case offers no support for respondent's position herein where there clearly was a legal liability on the part of Amoco Egypt and the assumption of that liability by EGPC. Respondent's reliance on Nissho Iwai American Corp. v. Commissioner, 89 T.C. 765 (1987), is misplaced. In Nissho, a U.S. taxpayer had engaged in a net loan transaction with a private borrower in Brazil, whereby the borrower agreed to pay interest at a certain rate net of any Brazilian withholding taxes. Simultaneous with remittance of the tax by the borrower, the borrower received a subsidy from the Brazilian Government based on the amount of the tax paid. The Court applied the indirect subsidy rule in the temporary regulations, section 4.901- 2(f)(3)(ii), Temporary Income Tax Regs., 45 Fed. Reg. 75653-75654 (Nov. 17, 1980), which it held was reasonable, and denied foreign tax credits to the taxpayer for the amount of tax which was credited to the Brazilian borrower. The holding in Nissho is based upon the finding that the borrower received the subsidy by virtue of the refund of the withheld tax. The borrower was a private party, and thus there was no question it obtained a benefit, so that it does not aid us in our determination herein. Continental Illinois Corp. v.Page: Previous 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 Next
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