- 5 -
including those contained in section 59(a)(2)(A). We find no
reason to depart from these holdings to follow petitioner down a
twisting path of legal analysis whose ultimate destination would
require us to reverse two prior holdings and find a provision of
U.S. law in conflict with the U.S.-Germany treaty. We hold in
accordance with our previous decisions in Pekar and Brooke that
the limitation of section 59(a)(2)(A) applies to petitioner.3
We have considered all of the parties’ arguments and
rejected those not discussed herein as meritless. To reflect
respondent’s concession,
Decision will be entered
under Rule 155.
3 Petitioner raises for our consideration Kappus v.
Commissioner, 337 F.3d 1053 (D.C. Cir. 2003), affg. T.C. Memo.
2002-36, where the Court of Appeals for the District of Columbia
Circuit opted not to decide whether sec. 59(a)(2)(A) conflicted
with an article of the U.S.-Canada treaty similar to article
23(1), by holding that sec. 59(a)(2)(A) controlled the outcome as
the later of the two provisions. Petitioner infers erroneously
from the court’s holding in Kappus that the statute and the U.S.-
Germany treaty cannot be reconciled. The court never considered
that question. Nor did the court say anything inconsistent with
its previous affirmance of our decision in Brooke v.
Commissioner, T.C. Memo. 2000-194.
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Last modified: May 25, 2011