- 34 - fails to provide an allowance that “mimics” interest expense, and that the relationship of PRT allowances to nonrecoverable expenses is not sufficiently “predictable”. We reject these labels as merely argumentative and as without merit. We note statements in respondent’s pretrial brief, in respondent’s counsel’s opening statement, and in a number of respondent’s experts’ reports or testimony that in essence acknowledge the “income” or “profits” nature of PRT. One of respondent’s experts testified contrary to prior published statements he has made regarding PRT and its nature as an “excess profits tax”. In Texasgulf, Inc. & Subs. v. Commissioner, 107 T.C. 51 (1996), affd. 172 F.3d 209 (2d Cir. 1999), we held that the Ontario Mining Tax (OMT) satisfied the net income test of the section 901 regulations and constituted a creditable income tax. Among other things, we relied on industry data showing that a special processing allowance available to taxpayers in computing OMT liability adequately compensated for significant nonallowed costs, including interest. The evidence, among other things, indicated that the processing allowance, in the aggregate for the industry, exceeded the amount of significant nondeductible costs. See id. at 66. On appeal, the Court of Appeals for the Second Circuit focused on how OMT applied to the mining industry as a whole andPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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