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using the accounts of a permanent establishment) may be adopted
under the guidance of paragraph 23, the other method must be
customary and based on suitable criteria or the circumstances
must be exceptional.
Respondent contends that section 842(b) is customary because
it is substantially similar to the prior sections 819(a)13
13Sec. 819(a) of the Internal Revenue Code of 1954, as
amended and in effect for 1983, provided in pertinent part:
(1) In general.--In the case of any foreign
corporation taxable under this part, if the minimum
figure determined under paragraph (2) exceeds the
surplus held in the United States, then--
(A) the amount of the policy and other
contract liability requirements (determined under
section 805 without regard to this subsection),
and
(B) the amount of the required interest
(determined under section 809(a)(2) without regard
to this subsection),
shall each be reduced by an amount determined by
multiplying such excess by the current earnings rate
(as defined in section 805(b)(2)).
(2) Definitions.--For purposes of paragraph (1)--
(A) The minimum figure is the amount
determined by multiplying the taxpayer's total
insurance liabilities on United States business by
a percentage for the taxable year to be determined
and proclaimed by the Secretary.
The percentage determined and proclaimed by the
Secretary under the preceding sentence shall be based
on such data with respect to domestic life insurance
companies for the preceding taxable year as the
Secretary considers representative. Such percentage
(continued...)
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