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taxes for a given year if he or she “chooses to take to any
extent the benefits of section 901”. Id. Nonetheless, under
section 901(a) and section 1.901-1(d), Income Tax Regs., an
election to claim either the deduction or the credit may be made
or changed at any time before the expiration of the special 10-
year period of limitations prescribed in section 6511(d)(3)(A).
Both parties in the present case apparently agree that an
election may be changed if such a claim is properly raised prior
to or in the course of litigation, but they differ as to whether
that was done here.
Neither section 164 nor regulations promulgated thereunder
explicitly define the term “foreign income taxes”. Case law,
however, does offer some guidance. In general, U.S. legal
principles apply in determining the character of an alleged
foreign tax under section 164. See Dubitzky v. Commissioner, 60
T.C. 29, 33 (1973). With respect to section 901, regulations set
forth in detail the requirements for a tax to qualify as a
foreign income tax within the meaning of that section. See sec.
1.901-2, Income Tax Regs. Among other things, “A foreign levy is
an income tax if and only if--(i) It is a tax; and (ii) The
predominant character of that tax is that of an income tax in the
U.S. sense.” Sec. 1.901-2(a)(1), Income Tax Regs. Hence, for
either a deduction or a credit, the remittance must be in the
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