The North West Life Assurance Company of Canada - Page 72

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            treaties and concluded that section 842(b) was consistent with                             
            existing treaties, including the Canadian Treaty.                                          
                  The conference report on section 842(b) states:                                      

                  In particular, the Treasury Department believes that                                 
                  the provision does not violate treaty requirements that                              
                  foreign corporations be taxed only on profits derived                                
                  from the assets or activities of a corporation's U.S.                                
                  permanent establishment, that permanent establishments                               
                  of foreign corporations be taxed only on profits the                                 
                  permanent establishments might be expected to make were                              
                  they separate enterprises dealing independently with                                 
                  the foreign corporations of which they are a part, or                                
                  that permanent establishments of foreign corporations                                
                  be taxed in a manner no more burdensome than the manner                              
                  in which domestic corporations in the same                                           
                  circumstances are taxed.  The conferees similarly                                    
                  believe that this provision does not violate any treaty                              
                  now in effect.                                                                       
                        Several factors are cited by the Treasury                                      
                  Department in support of this view.  First, the                                      
                  provision applies to life insurance companies and                                    
                  property and casualty insurance companies in a manner                                
                  substantially similar to present-law rules covering                                  
                  only life insurance companies.  The Treasury Department                              
                  does not consider those present-law rules to violate                                 
                  U.S. treaties.                                                                       
                        Second, the provision attributes to a foreign                                  
                  insurance company an amount of assets determined by                                  
                  reference to the assets of comparable domestic                                       
                  insurance companies, thus reasonably measuring the                                   
                  amount of assets that the U.S. trade or business of a                                
                  foreign insurance company would be expected to have                                  
                  were it a separate company dealing independently with                                
                  non-U.S. offices of the foreign insurance company.  In                               
                  addition, a foreign insurance company can elect to                                   
                  determine its investment income based on the company's                               
                  worldwide investment yield, or utilize the statutory                                 
                  formula based on domestic industry averages.  It is                                  
                  well established that use of a formula as an element in                              
                  determining taxable income does not necessarily violate                              
                  "separate entity" accounting.  The Internal Revenue                                  
                  Code contains a number of provisions that apply                                      
                  fungibility principles to financial assets; use of                                   



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Last modified: May 25, 2011