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We also relied on the language of section 1.911-1(b)(7),
Income Tax Regs., as in effect at the time, which defined
“foreign country” as follows: “The term ‘foreign country’ means
territory under the sovereignty of a government other than that
of the United States and includes the air space over such
territory. It does not include a possession or Territory of the
United States.”
We noted that in the light of the international treaty
concerning Antarctica, the U.S. Department of State did not
consider Antarctica to be under the sovereignty of any
government. Therefore we held that Antarctica was not a foreign
country within the meaning of the regulations or of section 911
as then in effect. Martin v. Commissioner, supra at 62; see also
Rev. Rul. 67-52, 1967-1 C.B. 186.
The treaty regarding Antarctica is still in effect, and
therefore Antarctica remains a sovereignless region.3 Petitioner
nevertheless contends that Martin has been overruled and
superseded by the holding of the Supreme Court of the United
States in Smith v. United States, 507 U.S. 197 (1993), and the
holding of the U.S. District Court for the District of
Massachusetts in Smith v. Raytheon Co., 297 F. Supp. 2d 399 (D.
Mass. 2004).
3 The treaty was in force as of Jan. 1, 2005. Treaties in
Force, http://www.state.gov/documents/organization/53776.pdf.
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