- 46 - the income is to be treated as compensation to the individuals, we further conclude that payments are U.S. source income to the individual petitioners other than Mr. and Mrs. Zeiler. D. Alternative Availability of Deduction Without further argument or discussion, petitioners included the following statement in their opening brief: if the effect of * * * [the Court’s] holdings is to reduce the amount of foreign tax credits available to the petitioners during the years at issue, then, as part of the Rule 155 Computation, the petitioners reserve the right to elect to take a deduction for the stipulated foreign taxes paid in lieu of the foreign tax credit for any or all of such years pursuant to Code � 164(a)(3) and Treas. Reg. � 1.901-1(d). This issue had not previously been raised through the pleadings or at trial, and respondent objected thereto in his reply brief, asserting that petitioners’ claim was not a proper subject for a Rule 155 computation and should have been addressed as part of the merits of the case. Respondent’s opening brief had also contained, within a general discussion of the law relating to the foreign tax credit, the statement that “Once a taxpayer elects to take the credit, section 275(a)(4)(A) prohibits the claiming of the taxes as a deduction.” Petitioners responded to this remark in their reply brief with a single paragraph: Moreover, the respondent contends that once a taxpayer elects to take a foreign tax credit, Section 275(a)(4)(A) prohibits the claiming of the taxes as a deduction. In fact, Treas. Reg. � 1.901-1(d) allows a taxpayer to claim a deduction in lieu of a foreign tax credit at any time before the expiration of the statutePage: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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