Texasgulf Inc. and Subsidiaries, as Successor in Interest to Texasgulf Inc. and Subsidiaries - Page 30

                                       - 30 -                                         

          Income Tax Regs., 44 Fed. Reg. 36074 (June 20, 1979).  However,             
          this standard was dropped by the final regulations issued in 1983           
          and replaced with a “predominant character” test.  The use of the           
          “predominant character” and “effectively compensates” tests in              
          section 1.901-2(b)(4), Income Tax Regs., is a change from the               
          history and purpose approach used in the cases decided before the           
          1983 regulations applied a factual, quantitative approach.  This            
          change to a quantitative approach is also made by the provision             
          of the 1983 regulations which provides that the predominant                 
          character of a foreign tax is that of an income tax in the U.S.             
          sense, if, among other things, the foreign tax “is likely to                
          reach net gain in the normal circumstances in which it applies”.            
          Sec. 1.901-2(a)(3)(i), Income Tax Regs.                                     
               We have considered the parties’ use of industry data in this           
          case.  See par. C-1, supra p. 21.  The record contains broadly              
          representative data which shows that the OMT processing allowance           
          effectively compensates for the disallowed deductions.  See par.            
          C-3 and 4, supra pp. 22, 24.  The U.S. Court of Claims in Inland            
          Steel Co. v. United States, 230 Ct. Cl. 314, 677 F.2d 72 (1982),            
          did not have industry-wide data to consider, and the Secretary              
          had not yet promulgated regulations using a quantitative                    
          approach.  The court in Inland Steel did not discuss the                    
          relationship between nonrecoverable expenses and the OMT                    
          processing allowance.  Based on the Parsons OMT Report, Caland's            





Page:  Previous  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Next

Last modified: May 25, 2011