September 20, 2010
The government has filed its opening brief (attached below) in the Fifth Circuit in Container, challenging the Tax Court’s decision to treat loan guarantee fees as foreign-source income. As discussed in our previous post, the Tax Court concluded that such guarantee fees are best analogized to compensation for services.
The brief is unusually concise, using barely half of the maximum available pages. As it argued in the Tax Court, the government maintains on appeal that the fees are better analogized to interest, which would result in treating them as U.S.-source income. It emphasizes three elements of the fees in urging this position: the guarantee fees payments (1) “were made to [the Mexican parent] for the use of its credit”; (2) “to compensate it for putting its assets at risk;” and (3) “for its assistance in enabling [the U.S. sub] to meet its obligations under the Notes.”
The government’s brief criticizes the Tax Court’s approach for failing to recognize that: (1) there was no evidence that the sub had rendered any services to the parent in exchange for the fees; and (2) the amount of the fees was calculated as a percentage of the loan amount and, indeed, was a standard percentage charged by the parent to guarantee loans of its various subs irrespective of any services provided. The government also argues that the two most relevant precedents — Centel Comm. Corp. v. United States, 920 F.2d 1335 (7th Cir. 1990) (involving stock warrants), and Bank of America v. United States, 680 F.2d 142 (Ct. Cl. 1982) (involving commissions paid in connection with letters of credit) — strongly support its position.
The taxpayer’s answering brief is currently due on October 18, 2010.