The North West Life Assurance Company of Canada - Page 73

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                  fungibility principles in these ways is not                                          
                  inconsistent with the arm's-length standard and does                                 
                  not violate U.S. income tax treaties.  Similarly, the                                
                  agreement's provision, which takes into account both                                 
                  the taxpayer's actual investment yield and arm's-length                              
                  measures of yield and U.S.-connected assets, is                                      
                  appropriate under income tax treaties.  [H. Conf. Rept.                              
                  100-495, at 983-984 (1987), 1987-3 C.B. 193, 263-264;                                
                  emphasis added.]                                                                     

                  The majority correctly states that we must consider the                              
            expectation and intentions of the signatories to a Treaty.  I                              
            believe that the plain language of the Treaty and Commentaries                             
            supports respondent's position that section 842(b) is consistent                           
            with the Treaty.  Clearly, the Treasury Department's                                       
            preratification explanation of the Treaty, the statutory                                   
            provisions in place when the Treaty was signed and ratified, the                           
            consistent interpretation of the Treaty provisions by the United                           
            States Government, and the express view of Congress shortly after                          
            ratification that section 842(b) was consistent with the Treaty,                           
            all support the conclusion that the United States intended and                             
            believed that the Treaty and section 842(b) were consistent.  The                          
            majority cites to no contrary statements of intent made by the                             
            Canadian Government during the 15 years between signing the                                
            Treaty and this litigation.  Applying settled principles of                                
            interpretation to the situation before us, it is clear that the                            
            language of the Treaty contemplates the attribution of profits                             
            beyond the actual profits that were earned or reported.  Section                           






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