Electronic Arts, Inc. and Subsidiaries - Page 34




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          Co. was in the active conduct of a trade or business, and                   
          qualified for WHTC treatment.                                               
               In Kewanee Oil Co. v. Commissioner, 62 T.C. 728, 737-738               
          (1974), we described as follows the essential thrust of the                 
          foregoing cases and the significance of “active conduct of a                
          trade or business”:                                                         
                    Although the statutory history of the Western                     
               Hemisphere trade corporation provisions is perhaps less                
               exhaustive than might be desired, we think it nonetheless              
               discloses a clearly articulated legislative purpose upon the           
               basis of which Congress enacted the provisions in question.            
               The critical policy which emerges in the Western Hemisphere            
               provisions, and as previously expressed in the Revenue Acts            
               of 1921 and 1940, was Congress’ desire to offset through a             
               tax preference the competitive disadvantage suffered by                
               certain American corporations abroad on account of the less            
               onerous taxes to which their non-American competitors were             
               subject.  This encouragement was not, however, without                 
               limitations.  By means of the source rule and the active               
               conduct requirement Congress quite apparently sought to                
               distinguish, however bluntly, between those corporations               
               which themselves engaged in business activity outside the              
               United States in direct competition with foreign                       
               corporations and those which merely invested in others’                
               businesses abroad or otherwise did not engage in directly              
               competitive activity.  Our understanding in this respect is            
               not different from that expressed by the few courts which              
               have had occasion to address themselves to the language of             
               this portion of the statute.  Cf. Frank v. International               
               Canadian Corporation, 308 F.2d 520, 525 (C.A. 9);13 Towne              
               Securities Corporation v. Rea Forhan Pedrick, 44 A.F.T.R.              
               1258, 1259 (S.D. N.Y.); Babson Bros. Export Co., 22 T.C.M.             
               677, 683-684.  It follows that when the “active conduct”               
               requirement is read in the context from which it arose,                
               namely the threat of foreign competition, one might well               
               conclude that in passing the Western Hemisphere provisions             
               Congress intended to grant relief to United States business            
               activity in the Americas only to the extent that the                   
               beneficiary corporation conducted active business operations           
               abroad vulnerable to the competitive threat posed by the               
               tax-advantaged corporation of the other countries.14                   






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