Square D Company and Subsidiaries - Page 20




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          amounts would never be included in the foreign person’s U.S.                
          gross income–-that is, irrespective of any method of accounting             
          of the foreign payee.7  We note also that the situation where the           
          amounts owed to the related foreign person are foreign source,              
          non-effectively connected income is denominated an “example” of             
          where the regulatory authority conferred was intended to be                 
          exercised, which suggests other examples were also contemplated             
          where the foreign payee would lack a U.S. method of accounting.             
               The legislative history goes further in its guidance.  It              
          specifically (i) contemplates the need for regulations when the             
          amounts owed to a related foreign person are eligible for treaty            
          benefits and (ii) suggests that it is the absence of a U.S.                 
          method of accounting that determines the intended scope of the              
          regulatory authority.  The House and Senate reports both provide:           
                    Regulations will not be necessary when an amount                  
               paid to a related foreign person is effectively                        
               connected with a U.S. trade or business (unless a                      

               7 In Tate & Lyle, Inc. v. Commissioner, 103 T.C. 656, 670              
          (1994) (Tate & Lyle I), we acknowledged that the foregoing                  
          legislative history was “troublesome” with respect to our                   
          “literal reading of section 267(a) and its matching principle” as           
          having application only where failures to match were attributable           
          to methods of accounting.  Because we conclude in the instant               
          case, in contrast to Tate & Lyle I, that the statute is not                 
          clear, the legislative history must be accorded greater weight.             
               Moreover, as respondent argues, the legislative history for            
          the predecessor of sec. 267(a)(2) suggests that Congress enacted            
          that section to cover cases where the payee would not include the           
          amount because the amount was accrued and deducted but never                
          actually paid.  See S. Rept. 1242, 75th Cong., 1st Sess. (1937),            
          1937-2 C.B. 609, 630.                                                       





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