- 52 - mortgage holdings. Petitioner has established that, in fact, it avoided currency risk and only invested assets in the same currencies as its insurance liabilities because of the narrow profit margins on its products. As petitioner correctly points out, if petitioner's accounts were considered so inherently unreliable as to justify ignoring those accounts for purposes of the Canadian Convention, such a method should be used in all years, not just when the statute produces a higher amount than does petitioner's accounts. Article VII, paragraph (5) of the Canadian Convention makes clear that the same method of profit allocation is to be used each year unless there is a "good and sufficient reason to the contrary." Paragraph 30 of the Model Commentaries to Article 7, paragraph (6)17 explains that "a method of allocation once used should not be changed merely because in a particular year some other method produces more favourable results". The parties stipulated that for 1989 petitioner's actual ECNII and minimum ECNII were $19,910,031 and $19,606,065, respectively. As a result, section 842(b) would not increase petitioner's net investment income for 1989 because petitioner's actual ECNII exceeded petitioner's 17Art. 7(6) of the Model Treaty is substantially similar to Art. VII(5) of the Canadian Convention. Art. 7(6) provides in pertinent part: "For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary."Page: Previous 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 Next
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