American Air Liquide, Inc. and Subsidiaries - Page 7




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          (as defined in section 954(c)).”  Subparagraph (A) of section               
          954(c)(1) defines “foreign personal holding company income” to              
          include “Dividends, interest, royalties, rents, and annuities.”             
               Respondent focuses on the facts that section 904(a)(1)                 
          places passive income into a passive basket and that “royalties”            
          are specifically referred to in section 954(c)(1) as a type of              
          passive income.  Petitioner expands on this focus by reference to           
          section 904(d)(3)(C) and section 1.904-5, Income Tax Regs., which           
          together apply a look-through rule in the case of controlled                
          foreign corporations and other entities.  Section 904(d)(3)(C)              
          provides:                                                                   
               Any interest, rent, or royalty which is received or accrued            
               from a controlled foreign corporation in which the taxpayer            
               is a United States shareholder shall be treated as income in           
               a separate category to the extent it is allocable (under               
               regulations prescribed by the Secretary) to income of the              
               controlled foreign corporation.                                        
          Section 1.904-5(b), Income Tax Regs., provides:                             
               In general.  Except as otherwise provided in section                   
               904(d)(3) and this section, dividends, interest, rents,                
               and royalties received or accrued by a taxpayer from a                 
               controlled foreign corporation in which the taxpayer is                
               a United States shareholder shall be treated as general                
               limitation income.                                                     
          Section 1.904-5(i)(3), Income Tax Regs., is also relevant to                
          petitioner’s analysis.  It is entitled “Special rule for payments           
          from foreign parents to domestic subsidiaries” and contains no              
          text.  The Secretary explicitly “[RESERVED]” the rules under that           
          provision during the years in issue.  In 1992 the Secretary                 






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