Square D Company and Subsidiaries - Page 10




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          income unless it is actually paid, then the person who owes the             
          amount cannot deduct it until it is includible by the first                 
          person.2  Further, section 267(a)(3) directs the Secretary to               
          issue regulations applying the “matching principle” of section              
          267(a)(2) to foreign persons.  The phrase “matching principle”              
          does not appear in section 267(a)(2) and is not defined elsewhere           
          in the Code.                                                                
               The regulation we are concerned with is section 1.267(a)-              
          3(c)(2), Income Tax Regs., which, in combination with section               
          1.267(a)-3(b)(1), Income Tax Regs., requires a taxpayer to use              
          the cash method of accounting in deducting amounts of interest,             
          which is U.S. source and not income effectively connected with a            
          U.S. trade or business, owed to a related foreign person, whether           
          or not the foreign person is exempt from U.S. tax on such                   
          interest under a treaty.  The parties have stipulated that                  
          Article 10(1) of the 1967 Treaty would have applied to any                  
          payments of interest by petitioner on the 1991 and 1992                     
          Subordinated Loans before 1996 and therefore that the payments              
          would have been exempt from taxes otherwise due under sections              
          881 and 1442.  The parties have further stipulated that if                  
          section 1.267(a)-3, Income Tax Regs., is valid, petitioner is not           


               2 For convenience, we shall sometimes use the term “payor”             
          to refer to the person who owes the amount in question and                  
          “payee” to refer to the person to whom the amount is owed, even             
          if the amount in question has not been paid.                                





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