Interest Owed to a Related Foreign Entity

BY MICHAEL H. BROWN

TAX CASE

hen a taxpayer owes interest to a related foreign entity that is exempt by treaty, Treasury regulations section 1.267(a)-3 requires that the taxpayer use the cash method. The Seventh Circuit Court of Appeals affirmed the validity of this regulation.

Using an acquisition company, Schneider SA, a French corporation, acquired Square D, an accrual taxpayer, in 1991. The acquisition company borrowed $328 million from Schneider for this purpose. After completing the acquisition, Schneider owned 100% of Square D’s stock and Square D had to repay the loan.

Schneider SA was not required to include the interest accrued in its taxable income for U.S. federal income tax purposes. Square D deducted the interest accruals on its 1991 and 1992 federal income tax returns, rather than on its return for 1996, the year it paid the interest. The IRS determined a tax deficiency for 1991 and 1992. Square D, claiming that the IRS’s position was a flawed interpretation of the regulation, argued that the interest deductions for the two years were legitimate. The Tax Court had previously ruled the regulation invalid ( Tate & Lyle I, 103 TC 656 (1994)), but the Third Circuit Court of Appeals reversed this holding ( Tate & Lyle, 87 F3d 99 (1996)). In a 10–6 ruling, the Tax Court then abandoned its prior ruling and held that regulations section 1.267(a)(3) was valid. Square D appealed the decision.

Result . For the IRS. Square D argued that because Schneider SA did not have to include the interest accrual in income, the matching requirement of regulations section 1.267(a)-3 was invalid because it was inconsistent with IRC section 267(a).

Relying on Chevron (467 US 837), the Seventh Circuit first looked at the plain meaning of the tax code and regulations; it next examined the reasonableness of the IRS’s interpretation of the statute. Then, following the Third Circuit’s decision in Tate & Lyle I, the Seventh Circuit upheld the validity of regulations section 1.267(a)(3).

The court also held that Congress intended to allow the IRS to determine the method of deduction. Thus, if a U.S. taxpayer makes an interest payment to a related foreign person who is exempt from taxation by treaty, the taxpayer will be required to use the cash method with respect to the interest payments.

Square D Company and Subsidiaries v. Commissioner, 97 AFTR2d 2006-508 (CA7).

Prepared by Michael H. Brown, CPA, PhD, assistant professor of accounting, Tabor School of Business, Millikin University, Decatur, Ill.

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