- 28 - 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...)Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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