May 3, 2011
The Fifth Circuit yesterday issued a short, unpublished opinion affirming the Tax Court’s decision in Container. As discussed in more detail in our earlier post, the issue is the sourcing of guarantee fees charged by a Mexican parent to guarantee notes issued by its U.S. subsidiary. The Fifth Circuit ruled that the issue turned to a considerable extent on the Tax Court’s factual findings concluding that the fees were payments for services, which it found were not clearly erroneous. The Fifth Circuit concluded that the Tax Court’s ultimate characterization of the fees as foreign-source income was correct because they were payments for a service that was performed in Mexico — namely, the parent’s provision of the guarantee. The government had argued that the guarantee fees were more in the nature of interest that should be sourced to the United States.
This decision is of limited significance going forward. As we previously noted, Congress has already acted to reverse the result of this case for future years by enacting legislation specifically providing that a guarantee fee paid by a U.S. company is U.S.- sourced income. And the opinion resists making broad pronouncements about sourcing analysis, largely confining the discussion to the facts of the case. Indeed, by declining to publish the opinion, the Fifth Circuit has deliberately sought to minimize its precedential value. Under Fifth Circuit Rule 47.5.4, unpublished decisions may be cited, but they “are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case.”
A petition for rehearing, should the government choose to file one, would be due on June 16.