- 147 - are liable for withholding because they have not established any treaty exemption. We concluded earlier that the amounts that were paid from MDT and MSI to MABV and MTBV were not interest because there was no debt as required under section 163. In reaching our conclusion, we did not have to make a decision about the viability of MABV and MTBV as business entities, and we do not have to do so now. The payments that MDT and MSI made to MABV and MTBV, respectively, were paid in relation to an equity contribution from MABV and MTBV to MDT and MSI, respectively. Accordingly, the payments are subject to the withholding tax, and respondent's determination is sustained. B. Franchise Fees That Were Paid by MANV to Manver in Fiscal Year Ended November 30, 1987 Petitioners argue that Manver was a corporation validly formed under the laws of The Netherlands and that the payments were exempt under a treaty with The Netherlands. Respondent contends that the payments were disguised dividends that were paid to the Spanish investors, and, therefore, petitioners are not entitled to a benefit under the treaty. We concluded earlier that Manver did not own the intangibles, and, therefore, there was no "arm's-length" reason to make franchise payments, and the payments were not "ordinary and necessary" under section 162(a). Because MANV had no reason to compensate Manver, the MANV payments were dividends to thePage: Previous 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 Next
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