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Government agencies charged with their negotiation and
enforcement is given great weight”. United States v.
Stuart, supra at 369 (citing Kolovrat v. Oregon, 366
U.S. 187, 194 (1961)).
* * * It is the role of the judiciary to interpret
international conventions and to enforce domestic
rights arising from them. See Kolovrat v. Oregon, 366
U.S. 187 (1961); Perkins v. Elg, 307 U.S. 325 (1939);
Charlton v. Kelly, 229 U.S. 447 (1913); United States
v. Rauscher, 119 U.S. 407 (1886). Tax treaties are
purposive, and, accordingly, we should consider the
perceived underlying intent or purpose of the treaty
provision. See, e.g., Estate of Burghardt v.
Commissioner, * * * [80 T.C. 705, 717 (1983), affd.
without published opinion 734 F.2d 3 (3d Cir. 1984)]
(treating a reference to a “specific exemption” in a
U.S.-Italy estate tax treaty as not limited to an
exemption as such, but included a subsequently enacted
unified credit having the same function as an
exemption); Smith, “Tax Treaty Interpretation by the
Judiciary”, 49 Tax Law. 845, 858-867 (1996). In
addressing the issues of this case, we shall keep at
the forefront our role in the interpretation of
conventions.
We examine the underlying intent and purpose of the
provision in the 1995 Protocol to clarify whether the relevant
language of article XXIX B overrides section 2106 in this
instance by treating the Canadian-registered charities at issue
as U.S. residents, even though the bequests were funded by
sources outside the United States.
The technical explanation accompanying the 1995 Protocol
states:
Under paragraph 1 of Article XXIX B, a U.S. estate tax
deduction also will be allowed for a bequest by a
Canadian resident (as defined under Article IV
(Residence)) to a qualifying exempt organization that
is a Canadian corporation. However, paragraph 1 does
not allow a deduction for U.S. estate tax purposes with
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