The North West Life Assurance Company of Canada - Page 25

                                               - 25 -                                                  

            (1977) (Model Treaty), and explanatory commentaries (Model                                 
            Commentaries) provide helpful guidance.  See Letter of                                     
            Transmittal from President Carter to the Senate of the United                              
            States requesting ratification of the Convention, dated November                           
            12, 1980, 4 Roberts & Holland, Legislative History of United                               
            States Tax Conventions, p. 242 (1986); S. Comm. on Foreign                                 
            Relations, Tax Convention and Proposed Protocols with Canada, S.                           
            Exec. Rept. 98-22 (1984), 4 Roberts & Holland, supra at 1096;                              
            Taisei Fire & Marine Ins. Co. v. Commissioner, 104 T.C. 535                                
            (1995)(use of O.E.C.D. Commentaries in interpreting meaning of                             
            permanent establishments).  It is the role of the judiciary to                             
            interpret international conventions and to enforce domestic                                
            rights arising from them.  See Kolovrat v. Oregon, 366 U.S. 187                            
            (1961); Perkins v. Elg, 307 U.S. 325 (1939); Charlton  v. Kelly,                           
            229 U.S. 447 (1913); United States v. Rauscher, 119 U.S. 407                               
            (1886).  Tax treaties are purposive, and, accordingly, we should                           
            consider the perceived underlying intent or purpose of the treaty                          
            provision.  See, e.g., Estate of Burghardt v. Commissioner, supra                          
            at 717 (treating a reference to a "specific exemption" in a U.S.-                          
            Italy estate tax treaty as not limited to an exemption as such,                            
            but included a subsequently enacted unified credit having the                              
            same function as an exemption); Smith, Tax Treaty Interpretation                           
            by the Judiciary, 49 Tax Lawyer 845, 858-867 (1996).  In                                   







Page:  Previous  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Next

Last modified: May 25, 2011