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Petitioner's Untimely Treaty Discrimination Argument--
Alternatively, if we find the excess interest provisions
applicable, then petitioner argues that section 884(f)(1)(B)
violates article VII (Nondiscrimination) of the treaty. The
antidiscrimination argument was raised for the first time in
petitioner's reply brief (the final brief in a seriatim briefing
pattern), following respondent's answering and petitioner's
opening briefs. Although petitioner fashions its argument as
though it were in response to respondent's arguments made on
brief, we find that this position or argument was, to the Court's
knowledge, not raised by petitioner prior to trial, and it was
not raised during trial or in petitioner's opening brief. Thus,
respondent was not afforded an opportunity to address
petitioner's position. Petitioner points out that the
Commissioner, in Notice 89-80, 1989-2 C.B. 394, articulated the
position that the excess interest tax provisions do not violate
nondiscrimination provisions of several income tax treaties,
including the one with Japan, to which the United States is a
party. We find petitioner's attempt to raise this argument to be
untimely.16
15(...continued)
Management, Branch Profits Tax A-33 (1994).
16 Petitioner made the generalized argument that, as a
Japanese corporation, it would be treated "less favorably"
because it is "subject to more burdensome taxes" than a similarly
(continued...)
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