- 18 -
suggests on brief, but without any evidentiary support, that
respondent adopted the interpretation advanced by petitioner and
administratively reduced deficiencies by carrybacks of excess
foreign taxes for the purpose of computing interest. Presumably,
petitioner seeks to establish an administrative practice which
could be taken into account in interpreting an ambiguous statute.
See BankAmerica Corp. v. Commissioner, 109 T.C. at 16 (citing
Hanover Bank v. Commissioner, 369 U.S. 672, 686 (1962)). A
similar argument was made by the taxpayer in Fluor Corp. and
rejected by the Court of Appeals for the Federal Circuit. See
Fluor Corp. & Affiliates v. United States, 126 F.3d at 1405.
We have traveled a complicated path in an effort to discern
an answer to the choice before us. That choice is whether: (1)
We should hold for petitioner on the ground that there is a
loophole which we should leave to Congress to close (as it has
done for the future), or (2) we should hold for respondent on the
ground that there is at most a "glitch" in the statutory
framework and that the statutory provisions are sufficiently
"elastic" (United States v. Koppers Co., 348 U.S. at 264), to
accord, as the Court of Appeals for the Federal Circuit has done
in Fluor, compelling effect to section 6601(a) and continued
vitality to Seeley Tube & Box Co. and Koppers Co. so as to hold
that an underpayment, i.e., deficiency, is not reduced by a
carryback of foreign taxes for the purpose of computing interest.
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011