- 10 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011