- 26 - subsidy that was based on the amount of tax paid. Norwest Corp. v. Commissioner, 69 F.3d 1404, 1409-1410 (8th Cir. 1995), affg. T.C. Memo. 1992-282; Continental Ill. Corp. v. Commissioner, 998 F.2d 513, 519-520 (7th Cir. 1993), affg. in part and revg. in part on another ground T.C. Memo. 1988-318; Riggs I, 107 T.C. at 362. This Court, the U.S. Court of Appeals for the Eighth Circuit, and the U.S. Court of Appeals for the Seventh Circuit have held that the regulation is valid and applies to the Brazilian subsidy at issue here. Norwest Corp. v. Commissioner, supra at 1408-1410; Continental Ill. Corp. v. Commissioner, supra at 519-520; Nissho Iwai Am. Corp. v. Commissioner, 89 T.C. 765, 775-777 (1987). Brazil provides the subsidy to a Brazilian borrower who engages in a business transaction (the loan) with the U.S. taxpayer lender. The subsidy provided to the Brazilian borrower is 40 percent of the tax imposed by Brazil on the U.S. lender’s Brazilian income (the interest paid on the loan), and thus, the subsidy is measured by that tax. In Nissho Iwai Am. Corp. v. Commissioner, supra at 777, we stated: payment of the tax and receipt of the subsidy are in lockstep. Commonsense dictates that payment of the tax and receipt of the subsidy be viewed together in determining the amount of foreign taxes creditable for purposes of section 901. If we accept payment of the Brazilian tax as one transaction and receipt of the subsidy as another, we would ignore the true unity of the transaction and elevate form over substance; this we shall not do.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
Last modified: May 25, 2011