The North West Life Assurance Company of Canada - Page 48

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            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 companies                           







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Last modified: May 25, 2011