- 75 - its actual income from those assets." In Notice 89-96, 1989-2 C.B. 417, 420, which was issued as interim guidance until regulations are published, the Commissioner provides that "a foreign insurance company's minimum effectively connected net investment income includible in taxable income for the taxable year shall not exceed its worldwide gross investment income for the taxable year". Petitioner does not allege that it comes within this provision. The ramifications of the majority opinion go well beyond the resolution of this case. The provisions of the Canadian Treaty are based on Model Treaty Provisions used in many other treaties. In essence, the majority nullifies section 842(b). This raises the distinct possibility that foreign insurance companies with operations in the United States will have an advantage over domestic companies. Such a result is clearly contrary to the Internal Revenue Code and article VII, paragraph (2) of the Treaty.5 Moreover, the majority's interpretation of article VII, paragraph (2) raises serious questions about the use of other statutory methods of allocating the income and expenses of foreign persons that operate businesses in the United States 5Sec. 842(b) puts foreign insurance companies in the same situation, taxwise, as comparable domestic companies. It does not discriminate against foreign companies. On the other hand, the majority acknowledges that its interpretation of the Treaty invalidating sec. 842(b) may give Canadian insurance companies, operating a permanent establishment in the United States, an economic advantage over U.S. companies. See majority op. p. 55.Page: Previous 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 Next
Last modified: May 25, 2011