- 7 -
1979, U.S.-U.K., art. 23, 31 U.S.T. 5668, 5685 (hereinafter U.S.-
U.K. treaty); Convention for the Avoidance of Double Taxation,
Aug. 29, 1989, U.S.-Germany, art. 23, 30 I.L.M. 1778, 1779
(hereinafter U.S.-Germany treaty). Because petitioner contends
that the AMT was "outside the double taxation agreements" of the
treaties, we interpret his argument to be that the AMT and the
resulting limitation on the credit violate the treaties and
therefore cannot be applied.5
If there is a conflict between a Code provision and a treaty
provision, the "last-in-time" provision will trump the earlier
provision. See Lindsey v. Commissioner, 98 T.C. 672 (1992),
affd. without published opinion 15 F.3d 1160 (D.C. Cir. 1994);
Jamieson v. Commissioner, T.C. Memo. 1995-550, affd. without
published opinion 132 F.3d 1481 (D.C. Cir. 1997). However, if
there is no conflict between the two, then the Code and the
treaty should be read harmoniously, to give effect to each. See
5 We note that respondent never questioned petitioner's
failure to disclose this treaty-based return position as required
by sec. 6114. Unless excepted by regulations, each U.S. taxpayer
who takes a position that a treaty of the United States overrules
any provision of the Internal Revenue Code and effects a
reduction of any tax must disclose that position on either a Form
8833 or a separate attached statement. See sec. 6114(a); sec.
301.6114-1(a), Proced. & Admin. Regs. (treaty-based return
position). A taxpayer who fails in a material way to disclose
one or more positions taken for a taxable year is subject to a
separate penalty for each failure to disclose a position. See
sec. 301.6712-1, Proced. & Admin. Regs. (failure to disclose a
treaty-based return position). However, there is no indication
that this failure estops a taxpayer from taking such a position.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011