- 34 - 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.14Page: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Next
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