concurring: I concur in the result reached by the majority. Like the majority, I believe that this case turns on an interpretation of article VII of the United States-Canada Income Tax Convention, Sept. 26, 1980, T.I.A.S. No. 11087, 1986-2 C.B. 258 (Canadian Convention). Unlike the majority, I do not believe that this case turns on article VII, paragraph (2) (paragraph 2). I believe that one need look no further than article VII, paragraph (1) (paragraph 1), to conclude that petitioner prevails.
Section 842(b) is inconsistent with paragraph (1). The imputation to a foreign insurance company of a notional amount of investment income under section 842(b) (minimum ecnii), see majority op. part I, contravenes the threshold requirement in paragraph 1 that the business profits attributed to a permanent establishment come from the pool of business profits of the resident carrying on business through the permanent establishment. Paragraph 1 provides:
The business profits of a resident of a Contracting Stato shall be taxable only in that State unless the resident carries on business in the other Contracting State through a permanent establishment situated therein. If the resident carries on, or has carried on, business as aforesaid, the business profits of the resident may be taxed in the other State but only so much of them as is attributable to that permanent establishment. [Emphasis added.]
The notion that there exists a pool of business profits of which the business profits of the permanent establishment are a subset is derived from the pronoun in the phrase “only so much of them”, which refers to the business profits of the resident carrying on business through the permanent establishment. Although the precise meaning of the phrase “business profits of the resident” may be subject to debate, I believe that it does not include a notional amount of investment income derived from a formula based on the domestic asset/liability percentage and the domestic investment yield as provided in section 842(b).
Minimum ECNII is not income of a type that is subject to attribution under paragraph 1, and, therefore, the issue as to whether the method of attribution under section 842(b) is consistent with the “separate-entity principle” embodied in paragraph 2 need not be addressed. The majority, however, focuses its analysis on that particular issue and ultimately decides for petitioner on the basis that the methodology in section 842(b) is inconsistent with paragraph 2. The majority states:
we hold that the disposition of this case turns on whether the section 842(b)(1) formula prescribes a minimum amount of ECNII based on the facts as they relate to petitioner’s permanent establishment, by reference to the establishment’s separate accounts insofar as those accounts represent the facts of the situation * * *. [Majority op. p. 386.]
The majority concludes: “We are convinced that section 842(b) is contrary to and inconsistent with article VII, paragraph (2), which precludes the fictional allocation of business profits to petitioner’s permanent establishment.” Majority op. p. 387.
I believe that the majority need not have considered paragraph 2. Attribution of notional income is precluded not by paragraph 2, but, rather, by the restrictive language of paragraph 1 set forth above. Paragraph 11 of the Commentary on article VII of the Model Double Taxation Convention on Income and on Capital, Report of the O.E.C.D. Committee on Fiscal Affairs (1977) (Model Treaty), cited by the majority on page 392, provides, in part, “It should perhaps be emphasized that the directive contained in paragraph 2 is no justification for tax administrations to construct hypothetical profit figures in vacuo”. (Emphasis added.) It is noteworthy that article 7, paragraph 2, of the Model Treaty, which is identical in relevant respect to the Canadian Convention, does not affirmatively restrict the use of hypothetical profit figures, but, rather, only provides no justification to employ fictional profit figures in calculating the income attributable to a permanent establishment. It seems unlikely that paragraph 2 could restrict the use of hypothetical profit figures as the majority opines and simultaneously provide a potential justification to use such figures that is sufficiently colorable to require an explicit O.E.C.D. commentary advising against the practice. Accordingly, I cannot join the reasoning of the majority.
Whalen, J., agrees with this concurring opinion.