-95-
Lastly on this point, in 1938 respondent’s litigating
position in Anglo-Am. Direct Tea Trading Co. v. Commissioner, 38
B.T.A. 711 (1938), was that the return filing deadline for
purposes of the predecessor of section 882(c)(2) was the same as
the statutory due date for filing foreign corporation tax
returns. By 1941, if not earlier, respondent’s litigating
position had changed, and respondent was conceding that foreign
corporation tax returns filed late but before respondent’s
notification to foreign corporations would be considered timely
under the predecessor of section 882(c)(2). See Ardbern Co. v.
Commissioner, supra at 426.
In summary on this point, the filing deadline reflected in
section 1.882-4(a)(3)(i) and (ii), Income Tax Regs.,
incorporates significant aspects of the judicially crafted
foreign corporation tax return filing deadline and is quite
different from respondent’s original litigating position in 1938
in Anglo-Am. Direct Tea Trading Co.
(4) The majority opinion, see majority op. p. 77, suggests
that section 1.882-4(a)(2) and (3)(i), Income Tax Regs., is
inconsistent with the Treasury regulation promulgated in 1957;
namely, sec. 1.882-4, Income Tax Regs. To the contrary, the
1957 regulation was silent as to any tax return filing deadline
under section 882(c)(2); just as section 882(c)(2) is silent
still today as to any such deadline. Section 1.882-4(a)(2) and
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