Inverworld, Inc., et al. - Page 243

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            or business within the United States "shall be determined on the                              
            basis of the facts and circumstances in each case."  Id.                                      
                  Accordingly, pursuant to section 1.864-2(e), Income Tax                                 
            Regs., we apply the relevant case law, which provides tests                                   
            regarding the amount of activity that is required for a                                       
            conclusion that a taxpayer is engaged in "trade or business                                   
            within the United States" pursuant to section 864(b).  Finding no                             
            cases addressing the term "trade or business within the United                                
            States" as used in section 864(b), we turn to the cases                                       
            interpreting the statutory precursors of section 864 and section                              
            882(a).                                                                                       
                  In European Naval Stores Co., S.A. v. Commissioner, 11 T.C.                             
            127 (1948), the Court addressed whether the taxpayer, a foreign                               
            corporation, was “engaged in trade or business within the United                              
            States” within the meaning of section 231(b) of the 1939 Code, as                             
            amended.  In interpreting former section 231(b), the Court held                               
            that the "question as to what activities of a taxpayer constitute                             
            the carrying on of a business is one of fact."  Id. at 132                                    
            (citing Higgins v. Commissioner, 312 U.S. 212 (1941), which                                   
            interpreted the phrase "carrying on any trade or business" within                             
            the meaning of section 23(a) of the Revenue Act of 1932 (a                                    
            precursor of section 162(a))).  The Court in European Naval                                   
            Stores indicated that the phrase "engaged in trade or business                                
            within the United States" refers to profit-seeking activities                                 
            that are sufficiently regular, continuous, and extensive to                                   




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