- 12 - give effect to each.” Pekar v. Commissioner, 113 T.C. at 161. However, if there is a conflict between a Code provision and a tax treaty, the “last-in-time” rule will override the earlier provision. Id.; Whitney v. Robertson, supra at 194. Petitioners' position, that they are not subject to section 59(a)(2), is based upon two elements. The first is their assertion that the U.S.-Canada treaty and section 59(a)(2) are in conflict and the second is their assertion that the U.S.-Canada treaty is later in time than section 59(a)(2) by reason of the Third and Fourth Protocols, with the result that the provisions of the treaty override section 59(a)(2). Both of these elements must be established in order for petitioners to prevail in this case. If the treaty and section 59(a)(2) are not in conflict, then effect must be given to the provisions of both without regard to which of the two is later in time. Pekar v. Commissioner, supra. In that event, we must find that petitioners are subject to section 59(a)(2). On the other hand, if there is a conflict between the two, and if section 59(a)(2), as opposed to the treaty, is found to be later in time, then section 59(a)(2) controls as the last expression of the sovereign will. Jamieson v. Commissioner, T.C. Memo. 1995-550, affd. without published opinion 132 F.3d 1481 (D.C. Cir. 1997). As to the first element of their position, petitioners assert that the limitation on the foreign tax credit imposed byPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011