1970 U.S. Tax Ct. LEXIS 118 | Tax Ct. | 1970
Lead Opinion
OPINION
Issue I. Eligibility for Foreign Tax Credit of Certain Taxes Paid to Great Britain
Prior to 1918, taxes paid to foreign countries were allowed as a deduction only from United States income with the result that the same income was often subject to taxation by two sovereigns, i.e., the United States and the foreign country. In order to mitigate this heavy burden of double taxation, Congress included within the Revenue Act of 1918 provisions allowing a credit, as distinguished from a deduction, against the United States tax for certain taxes paid to foreign countries and United States possessions. Secs. 222 and 238, Revenue Act of 1918; H. Rept. No. 167, 65th Cong, 2d Sess. (1918), 1939-1 C.B. 98; 56 Cong. Rec. 677-678 (1918) ; Burnet v. Chicago Portrait Co., 285 U.S. 1, 7 (1932). Successor provisions pertaining to the foreign tax credit are currently embodied in sections 901 through 905 of the Code. Section 901 provides in part that the taxpayer may elect to have the amount of any “income, war profits, and excess profits taxes” paid to a foreign country or United States possession plus any such taxes deemed to have been paid under section 902 credited against his United States tax liability. Under section 902, a domestic corporation, which owns 10 percent or more of the voting stock of a foreign corporation from which it receives dividends, is deemed for purposes of the foreign tax credit to have paid the foreign income, war profits, and excess profits taxes paid by the foreign corporation with respect to such dividends.
Petitioner contends at the outset that inasmuch as it owned 52.7 percent of the voting stock of F. W. Woolworth & Co., Ltd. (England) , during the years involved herein, it is entitled to a credit under sections 901(a)
Petitioner unsuccessfully litigated this issue once before in the case of F. W. Woolworth Co. v. United States, 15 F. Supp. 679 (S.D. N.Y. 1936), affirmed on this issue 91 F.2d 973 (C.A. 2, 1937), certiorari denied 302 U.S. 768 (1937). Therein the District Court and the Second Circuit both held that taxes paid by petitioner’s British subsidiary under schedule A of the British Income Tax Act of 1918 (the provisions of which are in all material respects the same as those under schedule A of the British Income Tax Act of 1952) did not for purposes of the foreign tax credit constitute “income taxes” within the meaning of section 238(e), I.R.C. 1921 (progenitor of section 902, I.R.C. 1951). Nevertheless, petitioner contends on brief that the earlier case was submitted on written stipulation and that the result therein might well have been different if the District Court and Second Circuit had had the benefit of the testimony of petitioner’s expert witness herein, Frank Hey worth Talbot (hereinafter referred to as Talbot), an English barrister who has specialized in British revenue law since 1931. While we indeed found Talbot’s testimony to be most helpful and enlightening with respect to an understanding of the history, intent, and operation of the British Income Tax Act of 1952, such, testimony has served to reinforce our conviction that the earlier F. W. Wodlworth Co. case was correctly decided on this issue.
Talbot’s testimony and other evidence of record establish the following facts regarding the Income Tax Act, 1952, which governed the charge, assessment, and levy of income tax in the United Kingdom during the years involved herein. That Act classified all taxable income into five basic categories or schedules:
'Schedule A — Income derived from the ownership of land.
Schedule B — Income derived from the occupancy of land (i.e., farming).
Schedule 0 — Income derived from the ownership of government stocks.
Schedule D — Income not covered by schedules A, B, 0, or E is included in the following six subdivisions or cases:
Oase I — Profits from any trade.
Oase II — Profits from any profession or vocation.
Case III — Income from interest, annuities, and annual payments received from governmental sources.
Case IY — Income from foreign securities.
Case Y — Income from foreign possessions other than government securities.
Case YI — All gains or profits not falling under schedules A, B, C, or E or under cases I, II, III, IV, or V of schedule D.
Schedule E — Income derived from public office.
The same rate of tax applied to all taxable income regardless of the schedule applicable to such income. Schedule A of the Income Tax Act, 1952, levied a tax “in respect of the property in all lands, tenements, hereditaments and heritages in the United Kingdom capable of actual occupation,” based upon its annual rental value.
In determining whether the tax under schedule A of the Income Tax Act, 1952, qualifies as an “income tax” within the meaning of sections 901 and 902, the characterization of the tax under United Kingdom law is far from conclusive. It is well settled that the standard to he applied in making this determination is whether the foreign tax is the substantial equivalent of an “income tax” as that term is used and understood under the revenue laws of the United States. Biddle v. Commissioner, 302 U.S. 573 (1938); Commissioner v. American Metal Co., 221 F. 2d 134, 137 (C.A. 2, 1955), affirming 19 T.C. 879 (1953), and the cases cited therein. The United States concept of income has been defined as “a gain realized or a profit derived from capital, labor, or both.” Keasbey & Mattison Co. v. Rothensies, 133 F. 2d 894 (C.A. 3, 1943), and the authority cited there. Thus, it can be seen that the United States concept of “income” is based upon gain or profit realized by the taxpayer (i.e., net income as opposed to gross income, gross sales, or some other basis). See Allstate Insurance Co. v. United States, 419 F. 2d 409, 414 (Ct. Cl. 1969). By no stretch of the imagination could it be said that the tax under schedule A on the ownership of property as measured by its annual rental value, which may be an estimated figure, falls within the scope of this concept.
The testimony of Talbot buttresses our conclusion that the tax under schedule A is not the substantial equivalent of an “income tax” as that term is understood under United States revenue laws. Talbot’s explanation of the nature and operation of the tax ‘under schedule A in response to the hypothetical situation of an owner-occupier of property having an annual rental value of $20,000 was as follows:
In our concept, it’s tlie concept of our law from very early days, and it is one that you here may not share as a concept, a person who has the ownership and occupation of land, the annual value of which is $20,000 ⅜ * * is deemed to have an income, that is to say, he has a notional income ⅜ $ * of $20,000 by reason of the fact that he has the ownership of property which he could let for $20,000 but he chooses to occupy it himself and, therefore, he is regarded as the notional recipient of a $20,000 benefit.
Respondent would have us classify the tax under schedule A as a property tax. But the tax does not appear to be a true ad valorem property tax as that term is used in the United States inasmuch as the amount thereof is measured by Ae annual rental value of the property rather than its fair market value. However this may be, it seems clear that the tax under schedule A is not an income tax within the United States concept of that term. We are tbus reminded of the opinion written by Judge Learned Hand on behalf of the Second Circuit in F. W. Woolworth Co. v. United States, supra at 977, wherein it is stated: “A tax levied upon the use of land — 'however described — is not an ‘income tax’ of the kind here intended; it is not paid upon accumulated profits except by the fiction of treating the value of the land when occupied as a profit.” We deem this opinion to be controlling of the immediate issue at hand, and therefore hold that the taxes paid by petitioner’s British subsidiary to Great Britain under schedule A during the years 1957, 1958, and 1959 are not “income taxes” eligible for the foreign tax credit under sections 901 and 902 of the Code.
Subsequent to the decision in F. W. Woolworth Co. v. United States, supra, section 131 (h), I.R.C. 1939 (predecessor of section 903, I.R.C. 1954), was enacted as a part of the Revenue Act of 1942. That section provides that for purposes of the foreign tax credit provisions “the term ‘income, war profits, and excess profits taxes’ shall include a tax paid in lieu of a tax on income, war profits, or excess profits otherwise generally imposed by any foreign country or by any possession of the United States.” Petitioner advances the position that the taxes involved herein at least qualify as “a tax paid in lieu of a tax on income” within the meaning of section 903. Careful scrutiny of the legislative history of section 903, and of the regulations and case law interpreting that section compels us to reach a contrary conclusion.
The legislative history of the 1942 amendment adding the “in lieu” provision clearly manifests an intent to extend the scope of creditable foreign income taxes beyond the narrow confines of the United States concept of a tax imposed upon net income. See S. Rept. No. 1631, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 602; Statement of Mitchell B. Carroll, representing the National Foreign Trade Council, Hearings before the Senate Committee on Finance on the Revenue Act of 1942, 77th Cong., 2d Sess., pp. 206, 207-208, 210-212, 214-217. The Senate Finance Committee report provides in pertinent part, at 602:
Your committee believes further amendments should he made in section 131. Under that section as it now stands, a credit is allowed against United States tax for income, war profits, or excess profits taxes paid or accrued to any foreign country or to any possession of the United States. In the interpretation of the term “income tax,” the Commissioner, the Board, and the courts have consistently adhered to a concept of income tax rather closely related to our own, and if such foreign tax was not imposed upon a basis corresponding approximately to net income it was not recognized as a basis for such credit. Thus if a foreign country in imposing income taxation authorized, for reasons growing out of the administrative difficulties of determining net income or taxable basis within that country, a United States domestic corporation doing business in such country to pay a tax in lieu of such income tax but measured, for example, by gross income, gross sales or a number of units produced witbin tbe country, such tax has not heretofore been recognized as a basis for a credit. Tour committee has deemed it desirable to extend the scope of this section. * * *
While tbe liberalizing congressional intent underlying tbe enactment of tbe predecessor of section 903 is evident, tbe legislative bistory fails to clearly delineate the outer limits of taxes that will qualify as “in lieu” taxes under section 903. It is patent that the instant case does not present tbe situation described in the Senate Finance Committee report where “for reasons growing out of tbe administrative difficulties of determining net income” the foreign country imposed a substitute tax measured by- “gross income, gross sales, or a number of units produced within the country.” Of course, this example is offered only by way of illustration in the Senate Finance Committee report, and presumably was not intended to serve as the sine qua non qualification as an “in lieu” tax under section 903.
Nevertheless, our research of the cases arising under section 903 and its predecessor (sec. 131(h), I.E.C. 1939), fails to reveal any case wherein the foreign tax credit has been extended to substitute taxes measured, as in the instant case, on a basis other than gross income, gross sales, or units of production. Moreover, of the cases decided to date, the case which in our view most closely parallels the case at bar was decided adversely to the petitioner’s contentions herein, i.e., Lanman & Kemp-Barclay & Co. of Colombia, 26 T.C. 582 (1956). That case involved a United States corporation operating in Colombia which paid both an income tax and a patrimony tax to Colombia. The patrimony tax, which was levied upon certain real and personal property reduced by debts and various exemptions, was based upon the presumption that every piece of property has a certain productive ability and the failure of the owner to achieve a return therefrom cannot deprive the State of its right to receive revenue from this potential. Under Colombian law, the patrimony tax was deemed to be a supplement to and indivisible from the income tax. Based upon the foregoing facts, this Court held that the Colombian patrimony tax failed to qualify as either an income tax or as a tax in lieu of an income tax within the meaning of the predecessors of sections 901 and 903. In accord, Abbot Laboratories International Co. v. United States, 160 F. Supp. 321 (N.D. Ill. 1958), affirmed per curiam 267 F. 2d 940 (C.A. 7, 1959). We have been unable to discern any material distinction between Lanman & Kemp-Barclay & Co. of Colombia, and the instant case sufficient to produce a different result herein.
In support of his position that the tax under schedule A is a tax in lieu of an income tax, petitioner constructs an ingenious argument to show that the instant case fits the mold of the section 903 regulations. Section 1.903-1 (a), Income Tax Regs., provides that taxes imposed by a foreign country will qualify as a tax paid in lieu of an income tax if the following conditions are met: (1) Tire foreign country has in force a general income tax law; (2) the taxpayer claiming the credit would, in the absence of a specific provision applicable to such taxpayer, he subject to such general income tax law; (3) the general income tax is not imposed upon the taxpayer subject to the substituted tax. Petitioner relies upon expert testimony and other evidence of record to establish that: (1) The tax under schedule D levies a general income tax; (2) under the provisions of the British Income Tax Act of 1952, petitioner was entitled to reduce its trading profits subject to tax under schedule D by the amount subject to tax under sehedide A; (3) consequently the tax under schedule A was merely a substitute tax imposed in lieu of the general income tax under schedule D. Although at first blush this statutory scheme may appear to satisfy the requirements of the regulations, petitioner’s argument fails to explain why (if the schedule A tax is truly only a substitute tax) an owner-occupier would owe a tax under schedule A where it has no trading profits whatsoever or where its trading profits are less than the amount subjects to tax under schedule A. Viewed in this posture it can be seen that the tax under schedule A is in substance an additional tax based upon the fair rental value of property owned and occupied by petitioner rather than a substitute for a general income tax.
In support of his position that the tax under schedule A is a tax in lieu of an income tax within the intendment of section 903, petitioner relies upon Missouri Pacific Railroad Co. v. United States, 392 F. 2d 592 (Ct. Cl. 1968); United States v. Occidental Life Insurance Co. of Cal., 385 F. 2d 1 (C.A. 9, 1967); Equitable Life Assurance Soc. of U.S. v. United States, 366 F. 2d 967 (Ct. Cl. 1966); and Prudential Insurance Co. of America v. United States, 319 F.2d 161 (Ct. Cl. 1963). These cases are readily distinguishable from the case at bar inasmuch as they all involve taxes imposed upon gross income or gross sales and consequently clearly qualify as “in lieu” taxes within the legislative purpose underlying the enactment of section 903. In sharp contrast, the tax involved herein is imposed upon “notional” or imputed income measured by the annual rental value of property owned and occupied by the petitioner.
In view of the foregoing, we hold that the tax paid by petitioner’s British subsidiary under schedule A of the British Income Tax Act, 1952, does not qualify as an income tax or a tax in lieu of an income tax within the meaning of sections 901, 902, and/or 903.
Issue II. Compulation of the Per Country Limitation
During the years involved herein, section 901 provided that the amount of foreign tax credit allowed to offset United States taxes was “Subject to the limitation of section 904.” Section 904 in turn provided that the credit allowed with respect to taxes paid to any country “shall not exceed the same proportion of the tax against which such credit is taken which the taxpayer’s taxable income from sources within such country * * * bears to the entire taxable income for the same taxable year.” This limitation (commonly referred to as the per country limitation)
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The per country limitation is designed to prevent the foreign tax credit from being used to offset U.S. taxes properly attributable to domestic source income. H. Rept. No. 708, 72d Cong., 1st Sess. (1932), 1939-1 C.B. (Part 2) 473; Erich O. Grunebaum, 50 T.C. 710, 717 (1968), affd. 420 F. 2d 332 (C.A. 2, 1970).
The present controversy revolves around the numerator (i.e., taxable income of the particular foreign country involved) of the limiting fraction set forth above. For purposes of computing the per country limitation with respect to taxes paid by petitioner’s subsidiaries to England and Germany and taxes paid by petitioner to Cuba and Puerto Eico, respondent seeks to allocate various expenses of petitioner’s executive office, certain State income and franchise taxes and other general expenses to the dividend income received by petitioner from its English and German subsidiaries and to the income derived by petitioner from the operation of its Cuban and Puerto Eican ’branch offices. Of course, the end result of thus diminishing the numerator of the limiting fraction in computing the per country limitation with respect to each of these countries is a concomitant reduction of the maximum credit allowed petitioner for taxes paid or deemed paid to such countries.
Inasmuch as respondent first raised this issue by way of amendment to his answer, the burden of proof with respect thereto rests squarely with him. Eule 32, Tax Court Eules of Practice. In support of his position, respondent introduced tire testimony of Revenue Agent Morris Pliskow to show that the allocations at issue were made in accordance with sections 861 and 862 and the regulations promulgated thereunder.
Section 861 defines gross and taxable income derived from domestic sources, while section 862 defines gross and taxable income derived from foreign sources. Subsection 862(a) enumerates various items of gross income to be treated as income from sources outside the United States. Subsection 862(b) then sets forth the following method of determining taxable income from foreign sources:
(b) Taxable Income Fiíom Soxjbces Without United States. — From tbe items oí gross income specified in subsection (a) there shall be deducted the expenses, losses, and other deductions properly apportioned or allocated thereto, and a ratable part of any expenses, losses, or other deductions which cannot definitely be allocated to some item or class of gross income. The remainder, if any, shall be treated in full as taxable income from sources without the United States.
Section 1.862-1 (b), Income Tax Regs., provides that the taxable income from sources without the United States shall be determined on the same basis as that used in section 1.861-8, Income Tax Regs., for determining taxable income from sources within the United States. Section 1.861-8 (a) of the regulations provides in part that from the items of gross income includable in income from sources within the United States “there shall be deducted the expenses, losses, and other deductions properly apportioned or allocated thereto and a ratable part of any other expenses, losses, or deductions which cannot definitely be allocated to some item or class of gross income.” The regulation further states that the “ratable part is based upon the ratio of gross income from sources within the United States to the total gross income.”
On August 2, 1966, respondent published in the Federal Register (31 Fed. Reg. 10405) a proposed amendment to section 1.861-8, Income Tax Regs. These proposed regulations are entirely consistent with the existing regulations, 'and simply provide a more detailed explanation of the manner in which deduction items are to be allocated and apportioned among various items and classes of income. These proposed regulations have not as yet been formally adopted.
The proposed regulations set forth one group of rules for the allocation and/or apportionment of deductions “definitely related” to one or more items of gross income, and a separate set of rules for deductions which are not “definitely related” to one or more income items. Subsection 1.861-8(a) (8) (i) of these proposed regulations provides that “a deduction shall be considered definitely related to one or more items or classes of gross income if it is incurred in whole or in material part as a result of, or incident to, the activities from which such gross income is derived, or if it relates to a deduction which is incurred in whole or in material part as a result of, or incident to, the activities from which such gross income is derived.” Where a deduction item is definitely related to more than one item or class of gross income, sections 1.861-8(a) (2) (i) 'and 1.861-8(a) (4) (i) of the proposed regulations state that such deduction shall be allocated to all such items or classes of gross income, and, if necessary, apportioned “on a reasonable basis considering the particular characteristics of the activities producing such items or classes of gross income and the relative benefit of such activities to such items or classes of gross income.” Where a deduction is not definitely related to any particular item or class of gross 'income, sections 1.861-8(a) (2) (ii) and 1.861-8(a) (4) (ii) provide that such deduction “shall be apportioned ratably among such items or classes of gross income in the same proportion that the amount of each such item or class of gross income bears to- the amount of all such items or classes of gross income.”
Careful consideration of the testimony of Agent Pliskow and the other evidence of record fails to convince us of the correctness of respondent’s adjustments relating to the maximum foreign tax credit allowable to petitioner for taxes paid or deemed paid to England, Germany, Puerto Eico, and Cuba. In our view, this same result would obtain under either the existing or the proposed section 861 regulations. The ratio decidendi compelling this conclusion, as regards each of the expense items in question, is set forth in the ensuing discussion.
A. Deduction items allocated as being definitely related to dividends received from English and German subsidiaries
Agent Pliskow allocated a portion of various State income and franchise taxes paid by petitioner and certain foreign travel expenses incurred by two of petitioner’s executive officers to the dividend income received by petitioner from its English and German subsidiaries on the basis that such expenses were definitely related thereto.
With respect to the income and franchise taxes paid by petitioner to certain States (i.e., Virginia, New Jersey, Vermont, and North Carolina), respondent argues that since for purposes of computing such taxes petitioner was required to include within its tax base the dividend income received from its English and German subsidiaries, then the increment in tax resulting therefrom should be allocated to such dividend income. Although it does appear that the inclusion of the dividend income at issue in petitioner’s gross income for purposes of computing certain corporation income and franchise taxes paid by petitioner to Virginia, New Jersey, and Vermont
As regards the foreign travel expenses incurred by petitioner’s executive officers, the record herein shows that during the years 1957 through 1959 petitioner’s president and executive vice president served on the board of directors (consisting of 12 to 15 members) of petitioner’s English subsidiary, and the chairman of the board of directors of the English subsidiary served on petitioner’s board of directors. Petitioner had no representatives on the board of directors of the German subsidiary during this period. Petitioner’s two members of the British subsidiary’s board of directors did not regularly attend the meetings of the British subsidiary’s board of directors. Either the president or executive vice president of petitioner would make an annual visit to England to attend the annual March stockholders meeting of the British subsidiary and would, on that visit, attend any board of directors meeting which might be held. Petitioner’s president or executive vice president also occasionally attended stockholders meetings of the German subsidiary. In addition to the annual trip to England to attend the stockholders meeting of the English subsidiary, one of these executive officers would also travel to Europe in the latter part of the year and visit the English and German subsidiaries.
In support of his position that the foreign travel expenses of petitioner’s president and executive vice president are definitely related to the dividends petitioner received from the English and German subsidiaries, respondent points to several instances over a 5-year period (1955-59) in which petitioner’s directors or executive officers took some action or weighed the merits of certain broad policy modifications in connection with the British and German subsidiary.
There is an additional reason for rejecting respondent’s allocation of the foreign travel expenses at issue to petitioner’s dividend income. The evidence shows that it was the practice of petitioner and the foreign subsidiaries to share the overall expenses incurred on such trips, with petitioner paying for the transportation expenses and with the foreign subsidiaries paying the hotel expenses and other incidental expenses in their respective countries. In effect, petitioner has already made an apparently reasonable allocation of the total expenditures incurred by its two executives on their annual visits to England and Germany and we can perceive no reason to disturb such allocation. We note that section 1.861-8 (a) (4) (i), Proposed Income Tax Kegs., provides that “If a taxpayer has employed in a consistent manner a method of apportionment which is reasonable and in keeping with sound accounting practice, such method will not be disturbed.”
B. Deduction items ratably apportioned to dividend income from English and German subsidiaries as being not definitely related to any item of income
Agent Pliskow ratably apportioned certain expenses of petitioner’s executive office and various other expenses (i.e., executive officer salaries and related pension cost, cost of annual report, director’s fees and expenses, cost of annual stockholders meeting, registrar and transfer fees, attorneys’ fees for advice on Federal tax matters, fees for outside accounting services, and contributions) between the dividend income petitioner received from its English and German subsidiaries and petitioner’s domestic source income on the ground that such deductions were not definitely related to any item or class of income. We must disagree. In our view, the executive office and other expenses at issue are definitely related to petitioner’s domestic source income, and consequently, apportionment to foreign source income is unwarranted.
The credible testimony of petitioner’s witnesses and other evidence of record convinces us that petitioner’s executive officers were primarily concerned with the petitioner’s extensive domestic retail operations, which included a chain of approximately 2,000 variety stores. The record herein shows that petitioner made no purchases of merchandise for its British or German subsidiaries. Nor did petitioner perform any other services or otherwise participate to any significant extent in the actual operations of these subsidiaries. The British subsidiary’s internal organization for the purpose of operating its approximately 1,100 stores, was very similar to that of petitioner in the United States, with, an executive office and with several district offices. The internal structure of the various departments was also patterned after the departments in petitioner’s operational structure. The German subsidiary, which operated less than 100 stores during the period here involved, was more comparable to one of petitioner’s district offices in the United States, and its entire operation was conducted through a single office. As far as this record indicates both the British subsidiary and the Germany subsidiary were autonomous and operated independently of the parent corporation.
' Respondent’s proposed regulations provide that a deduction, shall be considered definitely related to a class of income if it is incurred “in whole or in material part as a result of, or incident to, the activities from which such income is derived.” If we apply this test, it clearly appears from respondent’s own computations that a material part of the executive office and other expenditures in dispute was incurred in connection with petitioner’s United States income. Of petitioner’s total executive office and other expenses, respondent has allocated only approximately 4 percent thereof to foreign source income, with the remaining 96 percent being allocated to United States source income. These percentages indicate quite persuasively that the expenditures in question were definitely related to petitioner’s domestic sources of income; a fortiori the need for an allocation under section 862(b) cannot arise.
C. Deduction items allocated to income of Cuban and Puerto Rican branch Stores
Respondent allocated a portion of certain domestic expenditures to the income received by petitioner from its Cuban and Puerto Rican branch operations on the basis that such deduction items were related thereto. Petitioner operated these stores in 1957,1958, and 1959 directly under the supervision of its New York regional office and therefore allocated a portion of its executive office expenses on the same basis as such expenses were allocated by petitioner to its stores in the United States. Respondent made allocations to these stores of the executive officers’ earnings and pension costs in amounts which differ slightly from the allocations already made by petitioner. Respondent also allocated to the Cuban and Puerto Rican stores a portion of petitioner’s State income and franchise taxes. With respect to the Puerto Rican stores, respondent also determined that “interest expense” should be allocated to the income received from such stores for the years 1957, 1958, and 1959 in the respective amounts of $23,216.74, $18,058.37, and $53,141.86. Respondent’s method for computing the allocations of the various items to be made to the income received by petitioner from its Cuban and Puerto Eican stores is set forth in our Findings of Fact and need not be repeated here.
We do not believe that any portion of the State franchise and corporation income taxes is allocable to the Cuban and Puerto Eican stores under section 862(b) for the purpose of computing the limiting fraction on foreign tax credit under section 904. Our discussion above with respect to the allocation of such taxes to dividend income received from petitioner’s British and German subsidiaries is equally applicable here. Eespondent’s own computations show Puerto Eican and Cuban earnings combined represent approximately 3 percent or less of the tax base used for computing the State corporation income and franchise taxes in question. It is apparent that the increment in State income and franchise taxes resulting from the inclusion of such Cuban and Puerto Eican earnings in the tax base does not constitute a “material part” of such taxes. Consequently, we conclude that these State taxes are in their entirety definitely related to domestic source income, and an allocation under section 862(b) is unwarranted.
As we have indicated, petitioner treated its Cuban and Puerto Eican stores on the same basis as the approximately 2,000 stores within the United States in allocating a portion of petitioner’s executive office expense and other general expenses to such stores for services rendered. The evidence shows that the compensation of petitioner’s store managers was based upon the profits generated by the individual store. It would appear therefore that the method of expenditure allocation adopted by petitioner was motivated solely by sound business considerations. It was consistently applied and there is nothing in the record to suggest that the allocations actually made by petitioner in the normal course of its business operations were unreasonable. Thus, we see no reason for disturbing the consistent and reasonable allocations already made by the petitioner. See sec. 1.861-8 (a) (4) (ii), Proposed Income Tax Eegs.
Eespondent has also made an allocation of interest expense to the income received by petitioner from its Puerto Eican stores. Agent Pliskow’s reasons for making this adjustment may be summarized as follows: (1) Petitioner, in inaugurating operations in Puerto Eico in 1957 and continuing into 1958 and 1959, supplied the Puerto Eican operation with inventory, cash, and fixed assets; (2) petitioner did not charge its Puerto Eican stores for these advances; (3) during this period petitioner was borrowing money at 5-percent interest; and (4) it was, consequently, necessary to make an allocation to income from Puerto Eican stores representing an interest charge which was computed at 5 percent of the net advances made by petitioner to its Puerto Rican operations. From testimony given by Agent Pliskow before this Court, it is clear that respondent does not rely upon either section 482 or section 483
In a memorandum report submitted to the audit division of the Internal Revenue Service, Agent Pliskow particularly relies upon the proposed regulations under section 861 for the proposition that the interest expense item at issue is definitely related to the gross income earned by petitioner’s Puerto Rican branch. To sustain this position, it was incumbent upon the respondent to show by a preponderance of the evidence that such interest expense was incurred as a result of, or incident to, the income-producing activities of the Puerto Rican branch operation. Sec. 1.861-8 (a) (3) (i), Proposed Income Tax Regs. We conclude that respondent has failed to carry his burden of proof with respect to this item. He has not introduced any evidence that the money borrowed by petitioner at the rate of 5 percent during this period was in any way connected with the Puerto Rican stores. Indeed, Agent Pliskow frankly admitted that he was unable to link any specific borrowings by petitioner to the advances made to the Puerto Rican branch or otherwise to the income-producing activities of that branch. Thus, in our view respondent has failed to establish a sufficient nexus between the interest expense item and the income earned by the Puerto Rican stores that would warrant an allocation under section 862(b).
Respondent cites Erich O. Grunebaum, supra; South Porto Rico Sugar Co., 2 T.C. 738 (1943); and International Standard Electric Corporation, 1 T.C. 1153 (1943), affirmed.on this issue 144 F. 2d 487 (C.A. 2, 1944), to support the allocation of petitioner’s expenditures to the income received from the foreign subsidiaries. We find these cases to be readily distinguishable on their facts. In the above-cited cases, the deduction items in question were not definitely related to any item or class of income, and therefore, were properly apportioned between domestic and foreign source income. In contrast, in the instant case the deductions at issue are definitely related to petitioner’s domestic source income, thereby obviating any need for an allocation between domestic and foreign source income.
In view of the foregoing, we hold that the allocations made by respondent are not required under section 862(b) and the applicable regulations, and consequently, petitioner’s computation of the per country limitation for foreign tax credit purposes is hereby sustained. Accordingly,
Decisions will loe entered wider Bule 50.
SEC. 901. TAXES OE FOREIGN COUNTRIES AND OF POSSESSIONS OF UNITED (STATES.
i(a) Allowance op Credit. — If the taxpayer chooses to have the benefits of this subpart, the tax imposed by this chapter shall, subject to the applicable limitation of section 904, be credited with the amounts provided in the applicable paragraph of subsection (b) plus, in the case of a corporation, the taxes deemed to have been paid under section 902 * * *
SEC. 902. CREDIT FOR CORPORATE STOCKHOLDER IN FOREIGN CORPORATION.
(a) Treatment op Taxes Paid bx Foreign Corporation. — For purposes of this subpart, a domestic corporation which owns at least 10 percent of the voting stock of a foreign corporation from which it receives dividends in any taxable year shall—
(1) to the extent such dividends are paid by such foreign corporation out of accumulated profits1 (as defined in subsection (e) (1) (A)) of a year for which such foreign ¡corporation is not a less developed country corporation, be deemed to have paid the same proportion of any income, war profits, or excess profits taxes paid or deemed to be paid by such foreign corporation to any foreign country or to any possession of the United States on or with respect to such accumulated profits, which the amount of such (dividends (determined without regard to section 78) bears to the amount of such accumulated profits in excess of such income, war profits, and excess profits taxes (other than those deemed paid) ; amd
Schedule A
1. Tax under this Schedule shall be charged In respect of the property in aU lands, tenements, hereditaments and heritages in the United Kingdom capable of actual occupation, for every twenty shillings of the annual value thereof:
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2. The annual value for the purposes of this Schedule shall, in the case of all lands, tenements, hereditaments or heritages, of whatever nature and for whatever purpose occupied or enjoyed, and of whatever value, be understood to be—
(a) if they are let at a rack rent and the amount of that rent has been fixed by agreement commencing within the period of seven years preceding the fifth day of April next before the time of making the assessment, the amount of the rent by the year at which they are let; or
(b) if they are not let at a rack rent so fixed, then the rack rent at which they are worth to be let by the year:
Provided that where the annual value of any property is to be determined as for year preceding a year of revaluation, this paragraph shall have effect as if the seven years referred to in sub-paragraph (a) thereof were the seven years ending immediately before the commencement of the said preceding year.
In 1960, the Code was amended to provide an alternative limitation (known as the overall limitation) to be applied in lieu of the per country limitation at the election of the taxpayer. See sec. 904(a)(2), I.R.C. 1954; sec. 1.904-1 (b), Income Tax Regs.; and S. Rept. No. 1393, 86th Cong., 2d Sess., 1960-2 C.B. 874.
“Agent Pliskow testified that he did not rely upon see. 482 in allocating the expenditures in question to petitioner’s foreign subsidiaries. Likewise, respondent does not cite sec. 482 on brief in support of such allocation.
In Treas. Dept, release F-1217 dated Apr. 15, 1968, it was announced that the proposed regulations under sec. 861 would “continue in effect under notice of proposed rule making and will be given further consideration before final action is taken thereon.” Furthermore, Rev. Rui. 69-121, 1969-1 C.B. 194, states that "further consideration is being given to the proposed regulations under section 861, * * *” and "The general question of the allocation of expenses, losses, and other deductions to items of gross income is under study.”
The parties stipulated that the only dividends Included in petitioner’s tax base In order to compute the North Carolina tax were dividends from petitioner’s Canadian subsidiary. Respondent’s reference to the North Carolina taxes appears to be unintentional inasmuch as Agen* Pliskow’s report concludes that no adjustments are warranted with respect to the dividend income petitioner received from its Canadian subsidiary.
“Respondent’s allocation of the State taxes in question, which is based upon figures supplied by petitioner toi Agent Pliskow, shows the increment resulting from the inclusion of the dividend income at issue in the tax base to be considerably greater than 5 percent. We are uncertain as to the basis for the conflict between these figures and the computation reflected on the various State tax returns. Under any circumstances, respondent has failed to carry his burden of proof that his method of allocation was reasonable.
These include a resolution adopted by petitioner’s board of directors to the effect that the retirement rule for executives1 of the British subsidiary be applied without exception (1956) ; authorization by the board of directors for loans to be made to the German subsidiary (1957, 1958, and 1959) ; authorization by the board of directors for an increase in the capital stock of the German subsidiary (1958) ; agreements reached concerning the payment of dividends by the German subsidiary (1958, 1959) ; and a few other instances in which petitioner’s top executives gave some general consideration to the desired economic trends of the foreign subsidiaries.
Sec. 483, I.R.C. 1954, which in effect imputes interest where a deferred-payment contract for the sale or exchange of property fails to provide therefor, does not appear to be applicable, and in any event, was not in effect during the years involved herein.
