- 48 - accounts. As we discuss below, the real facts (accounts) are ascertainable in the instant case. Respondent also seeks to justify the application of section 842(b) on the grounds that the statute serves as a necessary backstop to section 842(a) and corrects any underreporting of actual ECNII by foreign insurance companies. The parties agree that petitioner as well as other foreign insurance companies use their NAIC form 1A data to identify to what extent their net investment income is effectively connected to their U.S. businesses for purposes of section 842(a). In this context, respondent contends that foreign insurance companies have significant discretion in moving their assets between taxing jurisdictions once their State statutory trust requirements are satisfied. Respondent points out that Washington State law does not require a foreign insurer to deposit income earned on trusteed assets in the trust account and that it permits petitioner to replace trusteed assets with other assets of equal value and quality, subject to the investment rules. Consequently, forms 1A, respondent argues, fail to reflect the economic realities of the businesses of foreign insurance companies operating in the U.S. and are unreliable for the purpose determining their actual ECNII. Respondent goes on to argue that absent section 842(b), foreign insurance companiesPage: Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Next
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