- 98 - 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 toPage: Previous 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Next
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