Riggs National Corp. & Subsidiaries v. Commissioner

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 1998 Decided January 12, 1999

No. 98-1039

Riggs National Corporation & Subsidiaries

Appellant

v.

Commissioner of Internal Revenue Service,

Appellee

Appeal from the United States Tax Court

(No. TAX-24368-89)

Thomas C. Durham argued the cause for appellant. With
him on the briefs were Joel V. Williamson, Kim Marie
Boylan, and Stephen M. Feldhaus.

Charles Bricken, Attorney, United States Department of
Justice, argued the cause for appellee. With him on the brief
were Loretta C. Argrett, Assistant Attorney General, and
David English Carmack, Attorney.
 Stephen D. Gardner was on the brief for amicus curiae
National Foreign Trade Council, Inc.

Before: Wald, Silberman, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Riggs Bank, asserting that it
had paid taxes to the Brazilian government with respect to
interest income on loans it had made to the Central Bank of
Brazil, claimed foreign tax credits under s 901 of the Internal
Revenue Code. The Commissioner disallowed the credits on
the theory that Riggs was not "legally liable" for the tax
under Brazilian law, and the Tax Court denied Riggs' petition
for relief. We reverse.

I.

A.

Riggs National Corporation's subsidiary Riggs Bank was
one of numerous banks that made loans to the Central Bank
of Brazil during the early to mid-1980s as part of a plan to
rescue Brazil from a debt crisis. Riggs' loans were so-called
"net loans." In a net loan, the borrower contractually agrees
not only to pay interest to the lender, but also to pay any
local (Brazilian) tax that the lender owes on that interest
income. Every interest payment the lender receives is then
free of local tax--the borrower has paid it. By contrast, in a
"gross loan," the lender remains subject to local tax liability.
In either type of loan, which party technically conveys the tax
payment to the local government is of little moment. In a
gross loan, either the lender could remit the tax to the local
government or the borrower could withhold that amount and
remit it to the local government on behalf of the lender. So
too in a net loan (where the concept of "withholding" does not
really apply because the interest payments are free of local
tax), either the borrower could remit the tax to the local
government or the borrower could send to the lender both the
guaranteed net loan interest payment and the appropriate
amount of tax payment on the understanding that the lender
would then remit the tax to the local government. (In

practice in Brazil, the borrower does the "withholding" of the
local tax in the gross loan situation and the "paying" of the
local tax in the net loan situation.) The real difference
between gross loans and net loans lies not in who licks the
stamp on the envelope to the Brazilian government, but in
who bears the economic burden of the tax.

The key feature of a net loan is its placement of the risk of
a change in the local tax rate on the borrower. If the local
tax rate rises after the parties have set the interest rate, the
lender continues to receive the same interest payment free of
local tax--it is the borrower who suffers. On the other hand,
if the local tax rate falls after the parties have set the interest
rate, the lender still continues to receive the same interest
payment free of local tax--but now the borrower has become
better off because his assumed tax liability is lower.

Computing the lender's tax liability on a gross loan is easy:
one simply multiplies the local tax rate by the amount of
interest income. So if the local tax rate is 25% and the
interest payment is $12 (assume a 12% interest rate and $100
principal), the lender's local tax liability is $3. Computing the
lender's local tax liability on a net loan--which, recall, is
assumed by the borrower--is slightly more complicated. The
parties' loan agreement sets forth the interest income as an
after-tax amount, which presumably would be smaller than
the before-tax amount in a gross loan because, all things
being equal, a borrower entering a net loan will get a lower
interest rate in exchange for assuming the lender's tax liabili-
ty. To maintain parity between the tax revenue from net
loans and gross loans, the Brazilian government requires that
the after-tax income specified in the parties' net loan agree-
ment be adjusted--"grossed-up"--into a hypothetical before-
tax amount. The "gross-up" adjustment requires one to look
at the interest rate selected by the parties in their net loan
agreement, then assume that the parties had chosen the gross
loan form rather than the net loan form, and extrapolate the
interest rate the parties would have agreed upon if they had
entered a gross loan.1

__________
1 We should point out that a net loan transaction between a
United States lender and a United States borrower would implicate

The foregoing is best illustrated by an example. Suppose a
lender extends a $100 net loan to a borrower, specifying a 9%
annually compounded interest rate, and assume a local tax
rate on interest income of 25%. In the first year of the loan,
the lender will receive interest income of $9 (i.e., 9% of the
$100 principal), and this income will be free of local tax. The
borrower of course pays the $9 interest payment to the
lender. How much local tax does the borrower pay--on the
lender's behalf--to the local government? We identify the
interest rate the parties would have agreed upon had they
selected the gross loan form, which is the interest rate
necessary to provide the lender with the same $9 interest
income if the lender had to pay his own local tax obligation.
The answer is 12%. That interest rate would yield interest
income of $12 to the lender in the first year of the loan; the
local tax on this income would be $3 (i.e., 25% of $12); and
the lender would be left with $9 at the end of the day.2

__________
only United States tax law and would be treated entirely different-
ly. The borrower's contractual assumption of the lender's tax
liability would not relieve the lender of tax liability, for the borrow-
er's discharge of the lender's tax liability on the interest income
would itself constitute income to the lender. Old Colony Trust Co.
v. Commissioner of Internal Revenue, 279 U.S. 716, 729 (1929); 26
U.S.C. s 61(a) (1994). If the borrower covenanted to pay not only
the interest payment to the borrower and the lender's tax liability
on the interest payment, but also the lender's tax liability on the
income resulting from the borrower's discharge of the lender's
liability on the interest payment, that additional payment would
again constitute income to the lender. And so on. For whatever
reason, Brazilian tax law does not lead us into this endless circle.
Instead, it draws a line at the borrower's discharge of the lender's
tax liability on the interest income--only the grossed-up amount of
interest income is treated as income for purposes of Brazilian tax
law.

2 Although the trial-and-error method will suffice to identify the
grossed-up interest rate, the adjustment can also be performed
more formally. The equation is rg = rn/(1--t), where rg is the
interest rate the parties would have selected had they entered a
gross loan rather than a net loan, t is the local tax rate, and rn is the
interest rate the parties actually selected in their net loan agree-

The lender's Brazilian tax liability is only half of the story.
In calculating his United States tax liability, the lender must
include in gross income the interest payment he receives from
the borrower and the Brazilian tax paid (on his behalf) by the
borrower to the Brazilian tax collector. Old Colony Trust Co.
v. Commissioner of Internal Revenue, 279 U.S. 716, 729
(1929); 26 U.S.C. s 61 (1994). But there is potentially also a
benefit to our lender under U.S. tax law: the Internal Reve-
nue Code allows a taxpayer to take as a credit against his
U.S. tax liability on income earned in a foreign country the
amount of foreign tax he has paid on that same income. Id.
s 901.

This brings us to the dispute between Riggs Bank and the
Commissioner. Riggs claims it is entitled to foreign tax
credits in the amount of the Brazilian taxes paid on its behalf
by the borrower, the Central Bank of Brazil, pursuant to a
net loan agreement. The Commissioner disagrees, arguing
that under Brazilian law, there was no obligation on either
Riggs or the Central Bank to pay a tax given the Central
Bank's tax-immune status as a governmental entity, and so
any payments made were voluntary and not a "creditable" tax
for purposes of the foreign tax credit. (The Commissioner
does not seek to "have his cake and eat it too" by denying
Riggs the foreign tax credit and by including in Riggs' gross
U.S. income the "voluntary payment" made by the Central
Bank to the Brazilian Treasury--that illogical position, once
advanced by the Commissioner, has been rejected and aban-
doned. See Continental Illinois Corp. v. Commissioner of
Internal Revenue, 998 F.2d 513, 517-18 (7th Cir. 1993).)

It is important to understand the nature of appellant's
economic incentive in seeking the foreign tax credit to appre-
ciate the Commissioner's concern. The lender's gross cash
inflow is unaffected by the availability of the credit--the
lender, pursuant to the net loan agreement, continues to

__________
ment. See Continental Illinois Corp. v. Commissioner of Internal
Revenue, 998 F.2d 513, 516 (7th Cir. 1993). Plugging in the
numbers from the example set forth in the text, we can verify our
trial-and-error calculation; rg = .09/(1--.25) = .12; i.e., 12%.

receive the same guaranteed interest rate. Nor is there any
effect on the lender's Brazilian tax liability; by definition, in a
net loan, the lender has passed his Brazilian tax obligation to
the borrower. The economic advantage stems, rather, from
the effect on the lender's U.S. tax liability. Although the
lender's U.S. tax liability increases by the U.S. tax rate
multiplied by the amount of Brazilian tax paid on his behalf
by the borrower, the lender's U.S. tax liability simultaneously
decreases by the entire amount of the Brazilian tax. The key
point is that the foreign tax credit is a credit--not a deduc-
tion. So long as the U.S. tax rate is less than 100%, the
decrease in U.S. tax liability outweighs the increase. And the
lender can then apply this excess tax credit toward offsetting
the rest of his U.S. tax liability on this same foreign source
income.

B.

In 1983, appellant and several other banks contemplating
extending net loans to the Central Bank of Brazil were well
aware of the potential tax benefit just described and that a
precondition to qualifying for the foreign tax credit was
establishing that there was indeed a Brazilian tax for which
they would be liable. Although, as we have noted, it was
undisputed that Brazil imposed a tax on interest income paid
by Brazilian borrowers to non-Brazilian lenders, the Central
Bank is no ordinary Brazilian borrower. Rather, the Central
Bank is a governmental entity and thus immune from tax on
its own income under the Federal Constitution of Brazil. It
might have been thought that the Central Bank's own tax
immunity would not bear on its obligation to pay the tax on
any loan, including a net interest loan, for in such a transac-
tion the Central Bank would not really discharge its own tax
obligation, but rather a tax obligation contractually assumed
from the lender. But there was authority in Brazilian law for
the proposition that the tax-immune status of an entity such
as the Central Bank shielded not only its own income, but
also the interest income of a foreigner who lends to that tax-
immune entity in a net loan transaction. The Brazilian
Supreme Court had so ruled, see State of Parana v. Central

Bank (cited in Riggs Nat'l Corp. v. Commissioner, 107 T.C.
301, 342 (1996) (entered by Tax Court by order dated Oct. 15,
1997)), and the Brazilian Revenue Service issued an "officio"
to the same effect, see SRF 368 (cited in Riggs, 107 T.C. at
313-14).

An on-point Brazilian Supreme Court decision and an unfa-
vorable revenue service ruling did not, however, foreclose the
Bank's hopes for a foreign tax credit. Brazil does not follow
the common law rule of stare decisis, so the Supreme Court's
prior opinion is not necessarily authoritative, and, as in the
United States, the revenue service might be persuaded to
change its view. Brazilian tax immune entities were obliged,
under Brazilian law, to withhold taxes from gross loan inter-
est payments, see Federal Gov't v. Highway Dep't of the State
of Parana (cited in Riggs, 107 T.C. at 341)--notwithstanding
their own tax immune status--so it could be contended that
the contrary treatment of net loans was anomalous. Appel-
lant and other banks requested definitive guidance on the
matter, and the Minister of Finance--the highest ranking
Brazilian authority on tax matters--obliged them with a
favorable private letter ruling, which under Brazilian law
binds the parties.

The ruling concluded that the Central Bank--notwithstand-
ing its tax-immune status--was required under Brazilian law
to pay the tax obligation assumed from lenders in the contem-
plated net loan transactions. It explicitly stated that the
Central Bank "must ... pay the income tax on the interest
paid." Riggs, 107 T.C. at 331.3 The Minister distinguished
the earlier revenue ruling. The loans to the Central Bank
were regarded as unique in that the funds advanced to the
Central Bank were--under the terms of the debt restructur-
ing plan--available for relending by the Central Bank to
private Brazilian borrowers. The Minister deemed it appro-
priate to "look through" the Central Bank to those ultimate
private borrowers--so-called "borrowers-to-be"--for pur-

__________
3 The ruling was actually prepared by the Secretaria da Receita
Federal and then adopted by the Minister. The SRF is under the
Minister of Finance in the hierarchy of Brazilian taxing authority.

poses of deciding the proper tax treatment of the loans. And
it was settled Brazilian law that a private borrower in a net
loan was required to pay the tax obligation it had contractual-
ly assumed from the lender. The Minister concluded that the
"borrowers-to-be" aspect of the loans compelled an analogy to
the garden variety private borrower situation, and that the
Central Bank must "as a substitute for such borrowers [to-be]
pay the income tax incident on the interest from January 1,
1984 to the end of the period of availability for such funds to
be relent." Id.

Riggs assumed, based on this definitive ruling from Brazil's
highest tax authority, that the Brazilian tax was a creditable
tax under s 901 and it determined its U.S. tax liability
accordingly in the years 1984-86. This involved including in
gross income the interest payments as well as the Brazilian
tax obligation discharged by the Central Bank, applying the
U.S. tax rate to that amount, and finally crediting against that
U.S. tax liability the amount of the Brazilian tax obligation
discharged by the Central Bank. The Commissioner disa-
greed that the asserted payments made by the Central Bank
to the Brazilian tax collector constituted creditable taxes for
purposes of s 901, redetermined Riggs' U.S. tax liability, and
sent Riggs a notice of deficiency.4 The Commissioner argued
that a proper interpretation of Brazilian law led to the
conclusion--notwithstanding the Minister of Finance's private
letter ruling--that no Brazilian tax is imposed on either
lender or borrower where the borrower is a tax-immune
entity; therefore, any payments made were voluntary and not
"taxes paid or accrued ... to any foreign country." 26
U.S.C. s 901(b)(1).

The Bank argued in the Tax Court that the Commissioner's
theory depended on declaring ineffectual the Minister of
Finance's private letter ruling, and that adoption of such a
theory by the Tax Court would therefore run afoul of the act

__________
4 The amounts of foreign tax credit at issue for each year are:

1984 $166,415

1985 181,272

1986 317,019

of state doctrine. The Tax Court disagreed--it viewed the
private letter ruling as nothing "more than perhaps an admin-
istrative advisory opinion"--and thereupon engaged in a com-
prehensive review of Brazilian law on the issue of whether a
tax-immune borrower in a net loan transaction is considered
to assume the lender's tax obligation as a private borrower
would, and thus whether that tax-immune borrower is re-
quired to pay that amount to the Brazilian tax collector.
Riggs, 107 T.C. at 359. The Tax Court held that under
Brazilian law, a tax-immune borrower such as the Central
Bank is not required to pay the tax, and approved the
Commissioner's determination that the asserted payments did
not constitute creditable taxes for purposes of s 901.

II.

Riggs Bank primarily relies on the act of state doctrine.
The doctrine directs United States courts to refrain from
deciding a case when the outcome turns upon the legality or
illegality (whether as a matter of U.S., foreign, or internation-
al law) of official action by a foreign sovereign performed
within its own territory. W.S. Kirkpatrick & Co., Inc. v.
Environmental Tectonics Corp., 493 U.S. 400, 406 (1990). It
stems from separation of powers concerns; it reflects " 'the
strong sense of the Judicial Branch that its engagement in
the task of passing on the validity of foreign acts of state may
hinder' the conduct of foreign affairs." Id. at 404 (quoting
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964)); see generally Restatement (Third) of the Foreign
Relations Law of the United States s 443 cmt. a (1986).5

The government suggests that a foreign administrative
official's interpretation of foreign law is not the type of act of

__________
5 The doctrine does not operate by depriving courts of jurisdic-
tion; rather it functions as a doctrine of abstention. See In re
Minister Papandreou, 139 F.3d 247, 256 (D.C. Cir. 1998). The
party invoking the act of state doctrine has the burden of establish-
ing the factual predicate for the doctrine's applicability. Lamb v.
Phillip Morris, Inc., 915 F.2d 1024, 1026 & n.4 (6th Cir. 1990).

state contemplated by the doctrine.6 To be sure, the doctrine
has been applied principally to more "tangible" acts. See,
e.g., Sabbatino, 376 U.S. at 403-04 (expropriation of proper-
ty); Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)
(same); Underhill v. Hernandez, 168 U.S. 250, 254 (1897)
(detention of person by sovereign official); Credit Suisse v.
United States Dist. Court for the Cent. Dist. of Calif., 130
F.3d 1342, 1347 (9th Cir. 1997) (asset freeze orders); Callejo
v. Bancomer, S.A., 764 F.2d 1101, 1114 (5th Cir. 1985) (pro-
mulgation of exchange control regulations). That we are
unaware of cases treating an interpretation of law as an act of
state, of course, does not foreclose the doctrine's applicability.
We are, however, hesitant to treat an interpretation of law as
an act of state, for such a view might be in tension with rules
of procedure directing U.S. courts to conduct a de novo
review of foreign law when an issue of foreign law is raised.
See Fed. R. Civ. P. 44.1; Tax Court R. 146.

But, whether or not it can be said that the Brazilian
Minister of Finance's interpretation of Brazilian law qualifies
as an act of state, the Minister's order to the Central Bank to
withhold and pay the income tax on the interest paid to the
Bank goes beyond a mere interpretation of law. The Minis-
ter, after all, ordered that the Central Bank "must, in substi-
tution of the future not yet identified debtors of the tax [i.e.,
the borrowers-to-be], pay the income tax on the interest paid

__________
6 The government does not contend that the act of state doctrine
is inapplicable here because one of the litigants, the Commissioner,
is an executive branch official. Insofar as the Commissioner is an
executive branch official, it might be thought that the separation of
powers concerns underlying the doctrine are not present. While
not yet endorsed by a majority of the Supreme Court, some justices
have suggested an exception to the doctrine for cases in which the
executive branch has represented in a so-called "Bernstein" letter,
see Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-
Maatschappij, 210 F.2d 375 (2d Cir. 1954), that it has no objection
to denying validity to the foreign sovereign act. See First National
City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 768-770 (1972)
(opinion of Rehnquist, J., joined by Burger, C.J., and White, J.); see
generally Restatement s 443 Reporter's Note 8.

during the period in which the funds remained available for
relending." Riggs, 107 T.C. at 331. Such an order has been
treated as an act of state. See Credit Suisse, 130 F.3d at
1347 (asset freeze orders); Callejo, 764 F.2d at 1114 (ex-
change control regulations). The Tax Court's conclusion on
Brazilian law--that no tax is imposed on a net loan transac-
tion involving a governmental entity as borrower--implicitly
declared "non-compulsory," i.e., invalid, the Minister's order
to the Central Bank to pay the taxes. The act of state
doctrine requires courts to abstain from even engaging in
such an inquiry.

The Commissioner nevertheless argues, and the Tax Court
agreed, that the Minister's order to the Central Bank was not
actually a compulsory order and thus not a "definitive" act of
state. The Tax Court reasoned that Riggs' "experts did not
elaborate on whether the Central Bank, under Brazilian law,
was legally compelled to accept and follow the ruling," and
speculated that the Central Bank would likely succeed in
overturning the ruling if it sought an appeal in the Brazilian
courts. Riggs, 107 T.C. at 359. Here the Tax Court simply
misread the record. See Commissioner of Internal Revenue
v. Duberstein, 363 U.S. 278, 289-91 (1960). Both parties'
experts testified that acts of an executive official such as the
Minister are valid and binding until declared invalid by a
Brazilian court, Bekin Dep. (cited in Joint Appendix ("J.A.")
353-54); Pedreira Aff. p 7 (cited in J.A. 1156), and it is
undisputed that no such invalidation has occurred. Moreover,
appellant had no standing under Brazilian law to litigate the
validity of the Minister's ruling; only the Central Bank had
that right, and it declined to do so.

* * * *

The Commissioner argues that if the act of state doctrine
requires courts to treat the Minister's ruling as binding, it
would jeopardize the Commissioner's ability to determine
when taxpayers are eligible for the foreign tax credit. That
is not so. The Commissioner's challenge focused entirely on
whether Brazilian law required the Central Bank to pay

taxes on these loans to the Brazilian government. The
Commissioner might have conceded the legitimacy of the
Minister of Finance's order, but contended that under U.S.
tax principles, the payments should not be considered a
creditable tax under s 901. That alternative argument, if
accepted by the Tax Court, would not run afoul of the act of
state doctrine because it would not require the Tax Court to
declare invalid the Minister's order to the Central Bank to
make the payments; it would only require the Tax Court to
interpret the U.S. tax consequences of those concededly
mandated payments. See Kirkpatrick, 493 U.S. at 405. In-
quiry into the U.S. tax consequences of foreign levies is what
this area of tax law is all about, and is the premise of the
Supreme Court's dictum in Biddle v. Commissioner of Inter-
nal Revenue, 302 U.S. 573, 579 (1938):

The phrase "income taxes paid," as used in our own
revenue laws, has for most practical purposes a well-
understood meaning to be derived from an examination
of the statutes which provide for the laying and collection
of income taxes. It is that meaning which must be
attributed to it as used in section [901].

The Treasury's own regulation acknowledges the distinction
between the Commissioner's claim in this case, which impli-
cates the act of state doctrine, and the ordinary Biddle-type
inquiry, which does not. The regulation provides, in relevant
part: "Whether a foreign levy [is creditable for purposes of
s 901] is determined by principles of U.S. law and not by
principles of the law of the foreign country." 26 C.F.R.
s 1.901-2(a)(2)(i) (1998). Ordinarily, the Commissioner takes
the foreign country's laws and requirements as given and
determines their U.S. tax consequences "by principles of U.S.
law and not by principles of the law of the foreign country."
Id. In this case, by contrast, the Commissioner focused on
the foreign country's laws and requirements themselves and
presented arguments based on foreign law that no payment
requirement existed.

We think we understand why the Commissioner was so
troubled by this transaction. The government's brief hinted
that to allow the Bank to take the tax credit in this situation

was to give it virtually "a free lunch"--at the American
Treasury's expense. A national governmental borrower is
different than a private borrower or a state borrower: al-
though the Central Bank has assumed the lender's tax obli-
gation in the net loan agreement, that transaction just re-
quires the federal government to take a bit of money from
one of its pockets and put it in the other. Whereas a private,
or even a state borrower, in a net loan arrangement bears a
real economic risk when it assumes the lender's tax liability
and the loan transaction's terms--possibly through lower
interest rates--presumably reflect that economic risk. But in
this situation the economic risk seems artificial. According to
both counsel, however, Treasury regulations do not admit of a
distinction between the foreign tax credit treatment of a net
loan with a central government entity as borrower and any
other entities as borrowers. See 26 C.F.R. s 1.901-2(f)(2)(ii)
Ex. 3; see generally II Joseph Isenbergh, International
Taxation p 29.12.3 (2d ed. 1997).

Of course, the opportunistic nature of the Brazilian govern-
ment's action is particularly vexing. The Minister's ruling
essentially accomplished a one-time increase in Brazilian tax-
es from 0% to 25%, applicable, by virtue of the narrowly
targeted borrowers-to-be-theory, only to the transaction be-
tween Riggs (and other foreign banks) and the Central Bank
of Brazil; it had no effect on other Brazilian borrowers. But
although we can visualize prophylactic regulatory measures
that would prevent this device from being utilized, the Com-
missioner has not yet fashioned a legitimate legal challenge to
Riggs' use of the foreign tax credit in this case.

* * * *

For the foregoing reasons, we reverse the decision of the
Tax Court and remand the case so that the Tax Court may
determine in the first instance which of Riggs' loans were
subject to the Minister's ruling, whether the taxes were in
fact paid by the Central Bank, and whether Riggs' credits
must be reduced by the amount of any subsidies that the
Central Bank may have received.

So ordered.