Framatome Connectors USA, Inc. - Page 25




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          Commissioner, 232 F.2d 873, 877 (4th Cir. 1956), affg. 24 T.C.              
          1000 (1955); Norwest Corp. v. Commissioner, 111 T.C. 105, 140-147           
          (1998); Estate of Durkin v. Commissioner, 99 T.C. 561, 572                  
          (1992).  As the U.S. Court of Appeals for the Second Circuit (the           
          court to which these cases are appealable) stated:                          
               It would be quite intolerable to pyramid the existing                  
               complexities of tax law by a rule that the tax shall be                
               that resulting from the form of transaction taxpayers                  
               have chosen or from any other form they might have                     
               chosen, whichever is less.  [Television Indus., Inc. v.                
               Commissioner, supra at 325.]                                           
               Petitioners made inconsistent claims concerning Burndy-                
          Japan’s CFC status.  Before 1987, Burndy-US owned 50 percent of             
          the stock of Burndy-Japan but it did not treat Burndy-Japan as a            
          CFC.  Burndy-US first claimed Burndy-Japan as a CFC on its 1987             
          return.  Petitioners changed their position even though Burndy-US           
          continued to own 50 percent of the stock of Burndy-Japan from               
          1987 to 1992, and the operational relationship between Burndy-US            
          and Burndy-Japan did not change during those years; the only                
          change was the tax law.  See Tax Reform Act of 1986 (TRA 1986),             
          Pub. L. 99-514, sec. 631, 100 Stat. 2269.11                                 


               11  Petitioners’ new position in 1987 that Burndy-Japan was            
          a CFC of Burndy-US coincided with a change in the tax law                   
          effective for tax years beginning in 1987.  See sec. 1204 of the            
          Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, 100 Stat.                
          2532.  Petitioners do not explain why they began to contend                 
          Burndy-Japan was a CFC in 1987; however, it is obvious that their           
          purpose was to enable Burndy-US to increase its foreign tax                 
          credit and pay less U.S. tax.                                               






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