- 73 - 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. SectionPage: Previous 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 Next
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