- 53 - minimum ECNII. On the other hand, those accounts that were adequate for 1989 were deemed inadequate for years 1988 and 1990 solely on the basis that petitioner's minimum ECNII of $21,282,045 and $20,749,629 exceeded its actual ECNII of $18,501,669 and $20,426,754 and not based on the actual inaccuracies of those accounts. We find that section 842(b) contravenes the basic premise set forth in Article VII, paragraph (5) of the Canadian Convention. In the totality of petitioner's circumstances, we do not believe that petitioner underreported its actual ECNII during the years at issue despite whatever deficiencies may exist in using form 1A to identify the extent to which petitioner's net investment income was effectively connected. Section 842(b) has the effect of penalizing petitioner, who reported income commensurate with its U.S. business but whose investment performance does not attain the U.S. average in each year. Such an approach is simply not consistent with either Article VII, paragraph (2) or (5). Respondent argues that petitioner's facts are not representative of the foreign insurance industry in the United States. Respondent admits that petitioner may be adversely affected by section 842(b) as written but contends, as a policy matter, the Court should not find the statute to be inconsistent with the Canadian Convention merely because one particularPage: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Next
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