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“accordance with the provisions and subject to the limitations of
the law of the United States”.
Petitioner notes that section 59(a)(2)(A) was enacted as
part of the Tax Reform Act of 1986, Pub. L. 99-514, sec. 701(a),
100 Stat. 2320, and that the U.S.-Germany treaty was ratified on
August 21, 1991. Petitioner contends, contrary to our holdings
in Pekar and Brooke, that irreconcilable differences exist
between the U.S.-Germany treaty and section 59(a)(2)(A) and that
the treaty controls because it was ratified at a later date.
See, e.g., Taylor v. Morton, 23 F. Cas. 784, 786-787 (C.C.D.
Mass. 1855) (establishing the so-called later in time rule),
affd. 67 U.S. (2 Black) 481 (1863). Petitioner concedes,
however, that we must attempt to reconcile a statute with a
potentially conflicting treaty before applying the later in time
rule. See, e.g., Whitney v. Robertson, 124 U.S. 190, 194 (1888);
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804) (“an Act of Congress ought never to be construed to
violate the law of nations if any other possible construction
remains”). Respondent argues that this Court can reconcile the
statute with the treaty as it did in Pekar and Brooke, and that
we should follow those cases. We agree with respondent.
In Pekar v. Commissioner, supra, and Brooke v. Commissioner,
supra, we concluded that article 23(1) specifically recognized
the “provisions” and “limitations” of existing U.S. law,
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Last modified: May 25, 2011