Framatome Connectors USA, Inc. v. Commissioner

118 T.C. No. 3UNITED STATES TAX COURT
FRAMATOME CONNECTORS USA, INC., PRESENTLY KNOWN AS FRAMATOME
CONNECTORS USA HOLDING INC., AND SUBSIDIARIES, AND BURNDY
CORPORATION PRESENTLY KNOWN AS FRAMATOME CONNECTORS USA INC.
Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
FRAMATOME CONNECTORS USA, INC., AND SUBSIDIARIES, N.K.A.
FRAMATOME CONNECTORS USA HOLDING INC., AND SUBSIDIARIES,
Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 5030-98, 9160-99. Filed January 16, 2002.
Controlled Foreign Corporation Issue: In 1992,
Burndy-US (B-US), a predecessor of Framatome Connectors
USA, Inc., one of the petitioners (Ps), owned 50
percent of the stock of Burndy-Japan (B-J). Furukawa
Electric Co. (F) and Sumitomo Electrical Indus., Ltd.
(S), each owned 25 percent of the stock of B-J.
Ps contend that B-US owned more than 50 percent of
the voting power of B-J stock and owned more than 50
percent of the value of B-J stock, and that, as a
result, B-J was a controlled foreign corporation (CFC)
in 1992 under both sec. 957(a)(1) and (2), I.R.C.
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Held: B-J was not a CFC in 1992 because B-US did
not own more than 50 percent of the voting power of B-J
stock or more than 50 percent of the value of B-J
stock.
Constructive Dividend Issue: In 1993, B-US
transferred to Framatome Connectors International
(FCI), its French parent, assets worth more than the
assets that B-US received from FCI. The parties
dispute whether these transfers were constructive
dividends paid by B-US in 1993 which are subject to
withholding tax under sec. 1442, I.R.C.
Held: Transfers by B-US to FCI of assets worth more
than the assets B-US received from FCI were constructive
dividends which were actually distributed for purposes of
the U.S.-France Tax Treaty, Convention With Respect to Taxes
on Income and Property, July 28, 1967, U.S.-Fr., 19 U.S.T.
5281, and thus, were subject to withholding tax under sec.
1442, I.R.C.
Mark A. Oates, Marc M. Levey, Erika Schaefer Schechter, A.
Duane Webber, William S. Garofalo, Kathryn D. Weston-Overbey, and
Thomas J. Kinzler, for petitioners.
Theodore J. Kletnick, Jill A. Frisch, Elizabeth Flores,
Steven D. Tillem, Murali Balachandran, and Robert T. Bennett, for
respondent.
TABLE OF CONTENTS
FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . 5
A. Petitioners, Their Predecessors, Furukawa, and
Sumitomo . . . . . . . . . . . . . . . . . . . . . 5
1. The Framatome Companies . . . . . . . . . . . 5
2. Burndy-US . . . . . . . . . . . . . . . . . . 5
3. Furukawa and Sumitomo . . . . . . . . . . . . 7
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B. Japanese Ministry of International Trade and
Industry . . . . . . . . . . . . . . . . . . . . . 7
C. Burndy-Japan . . . . . . . . . . . . . . . . . . . 8
1. Formation . . . . . . . . . . . . . . . . . . 8
2. Agreements Between Burndy-US, Furukawa, and
Sumitomo From 1962 to 1973 . . . . . . . . . . 9
3. 1973 Basic Agreement . . . . . . . . . . . . 10
4. Burndy-Japan’s Presidents and Board of
Directors . . . . . . . . . . . . . . . . . 12
5. 1988 Technical Assistance Agreement . . . . 13
6. Burndy-Japan’s Independence From Burndy-US . 14
7. Burndy-US’s Purchase of 40 Percent of the
Stock of Burndy-Japan in 1993 . . . . . . . 15
D. Withholding Tax Issue . . . . . . . . . . . . . . 17
1. Purchase of TRW Daut & Reitz by Burndy-US . 17
2. Transfer of 40 Percent of Burndy-Japan Stock
to Burndy-US in 1993 . . . . . . . . . . . . 19
OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Whether Burndy-Japan Was a Controlled Foreign
Corporation in 1992 . . . . . . . . . . . . . . . 20
1. Voting Power Test and Stock Value Test . . 20
2. Whether Burndy-US Owned More Than 50 Percent
of the Total Combined Voting Power of the
Stock of Burndy-Japan . . . . . . . . . . . 22
3. Whether Burndy-US Owned More Than 50 Percent
of the Value of Burndy-Japan Stock . . . . . 47
B. Whether Petitioners Are Liable for
Withholding Tax . . . . . . . . . . . . . . . . . 52
1. Contentions of the Parties . . . . . . . . . 52
2. Whether Burndy-US Transferred Excess Value
to FCI in 1993 . . . . . . . . . . . . . . . 53
3. The U.S.-France Tax Treaty and
1988 Protocol . . . . . . . . . . . . . . . 64
4. Conclusion . . . . . . . . . . . . . . . . . 67
COLVIN, Judge: Respondent determined deficiencies in
petitioners’ income and withholding taxes and a penalty as
follows:
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Withholding
Income tax Sec. 66621 tax
Year deficiency penalty deficiency
1991 $1,733,207 $380,298
1992 753,456 256,626
1993 24,892,344 4,978,469 $2,700,316
1
Unless otherwise specified, section references are to the
Internal Revenue Code in effect in the years in issue, and Rule
references are to the Tax Court Rules of Practice and Procedure.
After concessions, we must decide:
1. Whether Burndy-Japan Ltd. (Burndy-Japan) was a
controlled foreign corporation (CFC) of Burndy Corp. (Burndy-US)1
in 1992. We hold that it was not because Burndy-US did not own
more than 50 percent of the voting power of Burndy-Japan stock or
more than 50 percent of the value of Burndy-Japan stock in 1992.
2. Whether transfers from Burndy-US and Framatome
Connectors USA, Inc. (Framatome US), now known as Framatome
Connectors USA Holding, Inc., to Framatome Connectors
International (FCI), their parent corporation, of assets worth
more than the assets that Burndy-US received from FCI were
constructive dividends subject to withholding tax under section
1442. We hold that they were to the extent described below.
1
References to Burndy Corp. (Burndy-US) include its
successors in interest, such as Framatome Connectors USA, Inc.,
and Framatome Connectors USA Holding, Inc.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
A. Petitioners, Their Predecessors, Furukawa, and Sumitomo
1. The Framatome Companies
Petitioner Framatome US is a New York corporation, the
principal place of business of which was in Connecticut when the
petitions were filed. Framatome S.A., a French company, owned
100 percent of FCI, another French company, which owned 100
percent of Framatome US during the years in issue.
Framatome S.A. designed, sold, built, and serviced nuclear
power units. Framatome S.A. decided to diversify. Around 1988,
Framatome S.A. formed FCI to acquire and hold businesses which
manufactured electrical and electronic connectors. Electric
utility companies use electrical connectors to connect cables or
wires. Manufacturers use electronic connectors in machines,
appliances, computers, and electronic products. FCI formed
Framatome US in 1988 to acquire all of the outstanding shares of
Burndy-US (described next) and its subsidiaries, which
manufactured electrical and electronic connectors.
2. Burndy-US
Burndy-US was a predecessor corporation of Framatome US and
Framatome Connectors USA Holding, Inc. Burndy-US manufactured
electrical and electronic connectors before 1989.
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Key Burndy-US officers and employees included Richard Farley
(Farley), president of Burndy-US in 1972 and board member until
1989; Ernest Fanwick (Fanwick), general counsel of Burndy-US in
1970 and later vice president, general counsel, and secretary of
Burndy-US until 1989; Michael Cantor (Cantor), a general
consultant for Burndy-US in Japan from 1963 to 1980; and Theodore
York (York), a Burndy-US employee from 1964 to 1994, the general
manager of one of Burndy-US’s domestic electrical businesses in
1980, later manager of several Burndy-US overseas subsidiaries,
and a director of Burndy-Japan (described below at page 8).
Burndy-US owned all of the stock of the following European
subsidiaries before 1989: Framatome Connectors Belgium N.V. (FC-
Belgium); Framatome Connectors Schweiz A.G. (FC-Switzerland);
Framatome Connectors Espana (FC-Spain); Framatome Connectors
Italia (FC-Italy); Framatome Connectors Deutschland GmbH (FC-
Germany); Framatome Connectors U.K. Ltd. (FC-United Kingdom);
Framatome Connectors Nederland B.V. (FC-Netherlands); and
Framatome Connectors Sweden A.B. (FC-Sweden).
In the late 1980s, FCI acquired several connector companies
in addition to Burndy-US. Burndy-US and Framatome US merged in
1989.2 After being acquired by FCI, Burndy-US and other FCI
2
Framatome US changed its name to Framatome Connectors USA
Holding, Inc., on May 24, 1995. Burndy-US changed its name to
Framatome US on May 31, 1995.
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subsidiaries continued to manufacture electrical and electronic
connectors.
Burndy-US’s sales were $300 to $350 million per year in the
years in issue.
3. Furukawa and Sumitomo
During the years in issue, Sumitomo Electric Industries,
Ltd. (Sumitomo), and Furukawa Electric Co., Ltd. (Furukawa),
manufactured electrical wires, cables, and connectors for
Japanese electric utility companies. They competed against each
other. They were among the largest cable manufacturers in Japan.
Sumitomo had annual sales of $5 to $8 billion in the years in
issue. Furukawa’s sales were slightly less.
B. Japanese Ministry of International Trade and Industry
Japan restricted the entry of foreign-controlled companies
into Japan after World War II. The Foreign Investment Law (Law
No. 163 of 1950) and the Foreign Exchange Control Law (Law No.
228 of 1948) ensured that Japanese interests retained a majority
interest in jointly owned companies. The Japanese Government
began to relax these restrictions in 1964. In 1971, foreign
investors could own 50 percent of Japanese companies in most
industries, and 100 percent in many industries. By 1973, foreign
investors could own 100 percent of Japanese companies in most
industries. The Japanese Ministry of International Trade and
Industry (MITI) had responsibility for controlling foreign
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investment in Japan. The Japanese Government prohibited direct
foreign investment unless approved by MITI.
C. Burndy-Japan
1. Formation
Burndy-US wanted to enter the Japanese market in the early
1960s. To do so, Burndy-US believed that it needed a
distribution system in Japan that was owned and operated by a
Japanese company. Furukawa and Sumitomo had sales organizations
and distribution systems for their products throughout Japan. On
September 28, 1961, Burndy-US, Furukawa, and Sumitomo agreed to
form Burndy-Japan to manufacture and sell Burndy-US products in
Japan. Burndy-US, Furukawa, and Sumitomo each became the owner
of 100,000 shares of common stock (i.e., a one-third interest) in
Burndy-Japan.
The Burndy-Japan articles of incorporation (as amended)
provide: (a) Burndy-Japan shall have not more than 15 directors
and not more than 3 auditors; (b) the board of directors shall
elect one president and may elect one chairman and some (i.e., an
unspecified number of) executive directors; (c) the chairman
shall preside over meetings of the board of directors; (d) the
president shall act for the chairman if there is no chairman or
the chairman is unable to act; (e) the president shall preside
over general meetings of shareholders; and (f) each shareholder
shall have one vote per share.
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The articles of incorporation also provide that a majority
of the votes of the shareholders is required to adopt
resolutions, except for the following, which require approval by
shareholders who have shares representing more than 80 percent of
the issued shares: (a) Amendment of the articles of
incorporation; (b) election of directors and auditors; (c) change
in capital; (d) assignment of the entire or essential part of the
business of the company; (e) entrusting a third party with
management; (f) disposition of profits; (g) acquisition or
disposition of shares of other companies; and (h) conclusion or
alteration of license agreements. The articles of incorporation
authorized one class of stock consisting of 1,500,000 shares of
common stock with a par value of ¥500 per share.
2. Agreements Between Burndy-US, Furukawa, and Sumitomo
From 1962 to 1973
On July 18, 1962, Burndy-US, Furukawa, and Sumitomo agreed
to jointly manufacture and sell in Japan electronic connectors
and related installation tools (1962 basic agreement). The
Burndy-Japan shareholders also agreed to a supplemental
memorandum (1962 supplemental memorandum) and a technical
assistance agreement (1962 technical assistance agreement).
From 1962 to 1968, Furukawa and Sumitomo continued to
manufacture and sell connectors, which Burndy-US believed
violated the 1962 basic agreement. Burndy-US also disagreed with
several aspects of Burndy-Japan’s operations. Burndy-US,
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Furukawa, and Sumitomo negotiated to try to eliminate these
problems. They signed a memorandum of agreement and confidential
memorandum of understanding in 1968 to amend the 1962 basic
agreement.
The Burndy-Japan shareholders signed a memorandum of
understanding on October 24, 1972, which provided, among other
things, that Burndy-US was "to have complete management control
of Burndy-Japan" except that the following actions required the
approval of all Burndy-Japan shareholders: (1) Change of
capital; (2) license agreements with third parties; (3) purchase
or sale of shares in Burndy-Japan or other companies; and (4)
payment of dividends. Burndy-Japan paid Burndy-US a management
service fee based on gross sales.
3. 1973 Basic Agreement
Furukawa and Sumitomo continued to manufacture connectors
after Burndy-Japan was formed. Farley believed Furukawa and
Sumitomo gave higher priority to selling their own connectors
than Burndy-Japan’s connectors. The Burndy-Japan shareholders
signed an agreement on March 13, 1973, to address these and other
problems.
On March 19, 1973, the Burndy-Japan shareholders signed
another agreement (1973 basic agreement) which provided the
following:
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a. Furukawa and Sumitomo shall each transfer 25,000 shares
of Burndy-Japan stock to Burndy-US in exchange for ¥2,7503 per
share, after which Burndy-US will own 50 percent and Furukawa and
Sumitomo each will own 25 percent of the outstanding shares of
Burndy-Japan.
b. Burndy-Japan shares shall not be transferred without
unanimous prior written consent of the shareholders.
c. Burndy-Japan’s board of directors shall consist of as
many members as may be mutually agreed by the shareholders. Each
shareholder may vote its own stock to elect board members.
d. Burndy-US shall nominate and the board shall elect the
president of Burndy-Japan. The president is Burndy-Japan’s
representative director under the Japanese Commercial Code with
powers as provided by the board of directors. The president may
appoint officers and managers.
e. The chairman presiding at board meetings shall have a
second vote if there is no majority. However, the chairman may
cast that vote “only after careful and fair consideration of all
aspects of the issue at hand”, and “the issue at hand shall be
further discussed in an effort to reach an amicable solution” if
there is no majority vote at the shareholders meeting.
f. Burndy-Japan may not take the following actions unless
it receives the unanimous consent of the shareholders:
3
¥ refers to Japanese yen.
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(1) Change authorized or issued capital; (2) change or conclude
any license agreements; (3) acquire an interest in or sell shares
in other companies; (4) pay dividends; (5) transfer all or a
major part of the business; and (6) entrust management to a third
party (the “six veto powers”).
g. The parties shall fully discuss “Any other important
actions in Burndy-Japan for an amicable solution.”
h. Furukawa and Sumitomo shall continue to sell and promote
Burndy-Japan products aggressively. Burndy-US shall inform
Furukawa and Sumitomo about new products that Burndy-US
introduces.
i. The agreement shall be construed under Japanese law.
j. Disputes in connection with this agreement shall be
settled by arbitration.
k. The document is the entire agreement of the parties and
supersedes all previous agreements “in respect to the subject
matter hereof”.
Burndy-US did not pay a control premium when it acquired
shares of Burndy-Japan from Furukawa and Sumitomo in 1973.4
4. Burndy-Japan’s Presidents and Board of Directors
Kaiji Kambe (Kambe) began to work for Burndy-Japan in 1967.
Kambe was an employee of Furukawa until 1972. He became an
4
We discuss petitioners’ contention to the contrary below
pp. 41-44.
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employee of Burndy-Japan in 1972 and president of Burndy-Japan on
May 30, 1973. Burndy-US was dissatisfied with him as president
and wanted to replace him.5
When Kambe retired, Sumitomo recommended Akimitsu Hijikata
(Hijikata) to be president. Hijikata had previously worked for
Sumitomo. Burndy-US had no nominees. Hijikata succeeded Kambe
as president.
Burndy-US became dissatisfied with Hijikata as president in
the late 1980s and early 1990s. Burndy-US wanted to remove him
from office but could not without approval from Furukawa and
Sumitomo.
5. 1988 Technical Assistance Agreement
Burndy-US and Burndy-Japan signed technical assistance
agreements in 1973, 1983, and 1988, which they negotiated at
arm’s length and which specified how Burndy-US would help Burndy-
Japan produce and sell Burndy-US products. Those agreements also
stated the amount of royalties and management fees Burndy-Japan
would pay to Burndy-US and how Burndy-Japan would treat its and
Burndy-US’s patents. Burndy-Japan paid royalties to Burndy-US
because Burndy-US provided Burndy-Japan licenses to manufacture
and sell products and technical assistance.
5
We discuss petitioners’ contention to the contrary below
p. 36.
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After 1980, Furukawa and Sumitomo wanted to increase the
amount of dividends they received from Burndy-Japan. Burndy-US,
Furukawa, and Sumitomo agreed to do so in 1988.
6. Burndy-Japan’s Independence From Burndy-US
From 1962 to 1993, Burndy-US tried unsuccessfully to direct
Burndy-Japan away from the electrical connector business to the
electronics business. Furukawa and Sumitomo were more interested
in the electrical than the electronics business.
In 1987, Burndy-US wanted but could not get from Burndy-
Japan a list of products manufactured or sold by Burndy-Japan and
information about certain sales by Burndy-Japan.
In 1990, Burndy-US asked Burndy-Japan for information to
help Burndy-US better understand Burndy-Japan’s competitors,
markets, customers, and how Japanese shareholders affected the
way Burndy-Japan did business. Burndy-US did not know what new
products Burndy-Japan had. Burndy-US tried unsuccessfully to get
Burndy-Japan to increase exports and to provide engineering
assistance to help Burndy-US’s Taiwan subsidiary. Burndy-Japan
did not give Burndy-US copies of patent applications as required
by the technical assistance agreement in effect at the time, even
though this information was important to Burndy-US.
In 1991, Burndy-Japan negotiated an agreement with a third
party and disposed of Burndy-US’s interest in a proprietary
product outside Japan without Burndy-US’s prior approval.
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7. Burndy-US’s Purchase of 40 Percent of the Stock of
Burndy-Japan in 1993
By 1990, Burndy-US had become dissatisfied with the
electrical part of Burndy-Japan's business. Burndy-US believed
that Furukawa and Sumitomo placed more emphasis on their
electrical businesses than on Burndy-Japan’s electronics
business.
By 1992, Burndy-US wanted to buy more shares of Burndy-Japan
stock. In April 1993, Burndy-US hired KPMG Peat Marwick (KPMG)
to appraise Burndy-Japan stock. KPMG used many different methods
which resulted in 34 different estimates of the value of Burndy-
Japan stock, averaging ¥7,501 per share.
FCI decided that it, rather than Burndy-US, would buy 40
percent of Burndy-Japan stock from Furukawa and Sumitomo and then
sell it to Burndy-US. On September 22, 1993, Burndy-US,
Furukawa, and Sumitomo signed an amended basic agreement (1993
amended basic agreement) in which Furukawa and Sumitomo each
agreed to sell to FCI 20 percent of the outstanding stock in
Burndy-Japan for ¥5,208,000,000 (¥8,750 per share x 297,600
shares per shareholder x 2 shareholders). FCI agreed to transfer
the 595,200 shares of Burndy-Japan to Burndy-US by December 31,
1993. Immediately before the parties completed the 1993 amended
basic agreement, 1,488,000 shares of common stock of Burndy-Japan
had been issued. Burndy-US owned 744,000 shares, and Furukawa
and Sumitomo each owned 372,000 shares.
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The 1993 basic agreement superseded all previous agreements
with respect to the subject matter in the 1993 agreement.
The following provisions replaced the veto provision in the 1973
basic agreement:
(1) Actions involving the change or conclusion of
significant license agreements or the acquisition or
sale of shares in other companies will not be taken
until the matter has been discussed at a Board of
Directors meeting unless all of the Directors agree
otherwise in writing.
(2) Except for transfers pursuant to Article 3
[of the 1993 basic agreement, which allows Burndy-Japan
shareholders to sell their shares under certain
conditions], the transfer of the whole or an essential
part of the business of Burndy-Japan shall require a
prior unanimous consent of all the parties hereto which
own not less than 5% of the issued shares, provided
that such transfers which concern the Electrical
Division shall require the unanimous consent of all
shareholders of Burndy-Japan.
Under the 1993 basic agreement, (1) Burndy-US could decide
how many directors Burndy-Japan would have; (2) each party could
nominate directors in proportion to their shareholdings; and (3)
Furukawa and Sumitomo could each designate one director if each
owned at least 5 percent of the stock of Burndy-Japan.
As a result of the 1993 stock sale, Burndy-US owned 90
percent of the stock of Burndy-Japan. Burndy-US removed Hijikata
as president in 1993 after Burndy-US increased its stock
ownership in Burndy-Japan to 90 percent.
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Burndy-US first claimed Burndy-Japan as a CFC on its 1987
return. Burndy-US and Burndy-Japan prepared consolidated
financial statements beginning in September 1993 and thereafter.
D. Withholding Tax Issue
1. Purchase of TRW Daut & Reitz by Burndy-US
In 1992, TRW, Inc. (TRW), a large U.S. multinational
company, manufactured automotive components. TRW had a U.S.
subsidiary, two German affiliates, and one Austrian affiliate
(collectively, TRW Daut & Reitz). The U.S. subsidiary
manufactured and sold automotive electronic connectors for the
U.S. market. The German and Austrian affiliates did so for the
German market.
TRW sold TRW Daut & Reitz in 1992 to help finance its
expansion into the air bag business. FCI paid TRW $67,201,317
for TRW Daut & Reitz. TRW owned patents and had two U.S. patent
applications related to air bag connectors pending in 1992. FCI
wanted to buy the rights to those patents to prevent TRW from
competing with FCI. TRW agreed to license the use of its
patents. TRW also agreed not to compete in the air bag market.
One noncompetition agreement covered the United States and
Europe. The second covered Germany, and the third covered
Austria.
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FCI agreed to pay TRW for the three noncompetition
agreements as follows: (a) United States and Europe (US-Europe),
$8 million; (b) Germany, $4 million; and (c) Austria,
$3 million.6 FCI intended for Burndy-US to manufacture air bag
connectors for sale in the United States and for FC-Italy to
manufacture them for sale in Europe. The German and Austrian
noncompetition agreements primarily benefited FC-Germany.
The US-Europe noncompetition agreement primarily benefited
Burndy-US and FC-Italy.
FCI bought the assets, stock, and covenants not to compete
from TRW Daut & Reitz on December 22, 1992. FCI paid TRW
$10,663,467 for the U.S. assets of TRW Daut & Reitz and the US-
Europe noncompetition agreement. FCI transferred the U.S. assets
of TRW Daut & Reitz and the US-Europe noncompetition agreement to
Burndy-US on December 22, 1992. In exchange for the assets and
US-Europe noncompetition agreement, Burndy-US agreed to transfer
to FCI property totaling $10,663,467, consisting of the stock of
FC-Germany, FC-United Kingdom, FC-Netherlands, and FC-Sweden, and
cash. Burndy-US transferred the stock of FC-Germany to FCI in
December 1992, and the stock of FC-United Kingdom, FC-
6
One noncompetition agreement stated that the covenant
applied to the United States and Europe. The second
noncompetition agreement stated that the covenant applied to
Germany. The third noncompetition agreement stated that the
covenant applied to Austria.
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Netherlands, and FC-Sweden to FCI in July 1993. Burndy-US
transferred the stock of FC-Italy and FC-Spain to FCI in 1994.
FC-Italy was a subsidiary of Burndy-US on December 22, 1992,
when Burndy-US acquired the US-Europe noncompetition agreement.
2. Transfer of 40 Percent of Burndy-Japan Stock to Burndy-
US in 1993
Furukawa and Sumitomo each transferred 297,600 shares (20
percent) of Burndy-Japan stock to FCI in 1993. On July 30, 1993,
and August 2, 1993, FCI paid FF300,356,4237 for ¥5,210,000,000.
FCI paid ¥2,604,000,000 to both Furukawa and Sumitomo, for a
total of ¥5,208,000,0008 on September 29, 1993.
The yen lost value relative to French francs from August 2,
1993, when ¥100 cost FF 5.8069, to September 29, 1993, when ¥100
cost FF 5.342. ¥5,208,000,000 cost FF278,211,360 on September
29, 1993. FCI could have paid FF22,145,063 (FF300,356,423 less
FF278,211,360) fewer French francs by delaying its yen purchase
to September 29, 1993. FF22,145,063 was the equivalent of
$3,926,430 based on the September 29, 1993, exchange rate
(FF5.6400 equaled $1) published by the Federal Reserve Bank of
New York. FCI decided that Burndy-US should pay FCI for the
exchange rate loss.
7
FF refers to French francs.
8
The record does not state what FCI did with the
¥2,000,000 difference between the ¥5,210,000,000 that FCI bought
and the ¥5,208,000,000 that FCI paid to Furukawa and Sumitomo.
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On September 20, 1993, FCI sold to Burndy-US 595,200 shares
of Burndy-Japan stock for FF300,356,423. FCI required Burndy-US
to pay the difference of FF22,145,063 that resulted from the
decreasing cost of yen in French francs.
Burndy-US transferred to FCI all of its interest in FC-
Belgium and FC-Switzerland in 1993, and all of its interest in
FC-Spain and FC-Italy in 1994.
OPINION
A. Whether Burndy-Japan Was a Controlled Foreign Corporation in
1992
For the taxable year 1992, respondent reclassified foreign
tax credits related to Burndy-Japan from the general limitation
foreign tax credit basket under section 904(d)(1)(I) to a
separate non-controlled corporation foreign tax credit basket
under section 904(d)(1)(E). Respondent reclassified the Burndy-
Japan foreign tax credits solely on the ground that Burndy-Japan
was not a CFC within the meaning of section 957(a). The effect
of this reclassification was to reduce petitioners’ allowable
foreign tax credit from Burndy-Japan for 1992 (including
carryovers from 1988 and 1989) from $1,802,524 to $381,790.
1. Voting Power Test and Stock Value Test
Petitioners contend Burndy-Japan was a CFC in 1992.9 A
foreign corporation is a CFC if U.S. shareholders own more than
9
See note 11, below, relating to why petitioners sought
CFC status for Burndy-Japan.
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50 percent of the voting power of all classes of its stock (the
voting power test), sec. 957(a)(1), or if U.S. shareholders own
more than 50 percent of the total value of its stock (the stock
value test), sec. 957(a)(2).10
Burndy-US owned 50 percent of the stock of Burndy-Japan in
1992. For petitioners to prevail, they must show that, in 1992,
either the voting power of Burndy-Japan stock held by Burndy-US
exceeded 50 percent of the total combined voting power of Burndy-
Japan stock, or the value of Burndy-Japan stock held by Burndy-US
exceeded 50 percent of the total value of Burndy-Japan stock.
Petitioners contend that Burndy-US met both tests. We disagree
for the following reasons.
10
Sec. 957(a) provides:
SEC. 957(a). General Rule.--For purposes of this
subpart, the term "controlled foreign corporation"
means any foreign corporation if more than 50 percent
of--
(1) the total combined voting power of
all classes of stock of such corporation
entitled to vote, or
(2) the total value of the stock of such
corporation,
is owned (within the meaning of section 958(a)), or is
considered as owned by applying the rules of ownership
of section 958(b), by United States shareholders on any
day during the taxable year of such foreign
corporation.
- 22 -
2. Whether Burndy-US Owned More Than 50 Percent of the
Total Combined Voting Power of the Stock of Burndy-
Japan
Petitioners contend that Burndy-US owned more than 50
percent of the total combined voting power of Burndy-Japan
because Burndy-US owned 50 percent of the stock of Burndy-Japan
and, according to petitioners, had the following powers:
(a) Burndy-US could select Burndy-Japan’s board of directors and
president and control the board’s tie-breaking vote; (b) Burndy-
US could dissolve Burndy-Japan; and (c) Burndy-US had management
control of Burndy-Japan. Petitioners point out that neither
Furukawa nor Sumitomo exercised the veto powers created by the
1973 agreement and contend that Burndy-US paid Furukawa and
Sumitomo a control premium in 1973 when Burndy-US obtained 50
percent of the stock of Burndy-Japan.
a. Petitioners May Not Rely on the Doctrine of
Substance Over Form
In 1973, Burndy-US, Sumitomo and Furukawa changed the
structure of their ownership of Burndy-Japan so that Burndy-US
would own 50 percent of the stock of Burndy-Japan and the two
other Japanese companies would each own 25 percent. It is clear
that this change did not give Burndy-US more than 50 percent of
the voting power of Burndy-Japan if “voting power” refers to the
shareholders’ percentage of stock ownership. Nonetheless,
petitioners now contend that Burndy-US owned more than 50 percent
of the voting power of Burndy-Japan.
- 23 -
Petitioners rely on several cases in which the government
successfully invoked the substance over form doctrine. Koehring
Co. v. United States, 583 F.2d 313 (7th Cir. 1978); Estate of
Weiskopf v. Commissioner, 64 T.C. 78 (1975), affd. per curiam
without published opinion 538 F.2d 317 (2d Cir. 1976); Kraus v.
Commissioner, 59 T.C. 681 (1973), affd. 490 F.2d 898 (2d Cir.
1974); and Garlock Inc. v. Commissioner, 58 T.C. 423 (1972),
affd. 489 F.2d 197, 201 (2d Cir. 1973). In those cases, the
issue was whether a U.S. shareholder or shareholders owning 50
percent or less (specifically, common stock with 45 percent of
the voting power in Koehring, stock with 50 percent of the voting
power in Estate of Weiskopf, and all of the common stock which
had 50 percent of the voting power in Kraus and Garlock) of the
stock of a foreign corporation had more than 50 percent of the
voting power of the corporation for purposes of section
957(a)(1). The theme running through these cases was the
arrangement by the U.S. shareholders to have the foreign
corporation issue a new class of voting preferred stock to
foreign persons so as to avoid or terminate CFC status of the
foreign corporation. The Commissioner contended, and the courts
in those cases held, that the foreign corporation remained a CFC
because in substance the U.S. shareholders retained control of
the corporation, notwithstanding the reduction of their nominal
- 24 -
percentage ownership of stock having 50 percent or less of the
voting power.
Petitioners contend that those cases support their position
that Burndy had more than 50 percent of the voting power and
value of stock of Burndy-Japan. We disagree. The Government
prevailed in those cases by relying on section 1.957-1(b)(2),
Income Tax Regs., and by invoking the doctrine of substance over
form. That doctrine generally allows the Commissioner to
recharacterize a transaction according to its substance but does
not allow a taxpayer to disavow a transactional form of the
taxpayer’s own choosing. See Commissioner v. Natl. Alfalfa
Dehydrating & Milling Co., 417 U.S. 134, 149 (1974); Commissioner
v. Court Holding Co., 324 U.S. 331, 334 (1945); Gray v. Powell,
314 U.S. 402, 414 (1941); Higgins v. Smith, 308 U.S. 473, 477
(1940); Gregory v. Helvering, 293 U.S. 465 (1935); Nestle
Holdings, Inc. v. Commissioner, 152 F.3d 83, 87 (2d Cir. 1998),
affg. in part and revg. in part on other issues and remanding
T.C. Memo. 1995-441. Generally, the Commissioner, not the
taxpayer, can assert the doctrine of substance over form. See
Higgins v. Smith, supra; Founders Gen. Corp. v. Hoey, 300 U.S.
268, 275 (1937); Gregory v. Helvering, supra at 469; Old Mission
Portland Cement Co. v. Helvering, 293 U.S. 289, 293 (1934);
Television Indus., Inc. v. Commissioner, 284 F.2d 322, 325 (2d
Cir. 1960), affg. 32 T.C. 1297 (1959); Interlochen Co. v.
- 25 -
Commissioner, 232 F.2d 873, 877 (4th Cir. 1956), affg. 24 T.C.
1000 (1955); Norwest Corp. v. Commissioner, 111 T.C. 105, 140-147
(1998); Estate of Durkin v. Commissioner, 99 T.C. 561, 572
(1992). As the U.S. Court of Appeals for the Second Circuit (the
court to which these cases are appealable) stated:
It would be quite intolerable to pyramid the existing
complexities of tax law by a rule that the tax shall be
that resulting from the form of transaction taxpayers
have chosen or from any other form they might have
chosen, whichever is less. [Television Indus., Inc. v.
Commissioner, supra at 325.]
Petitioners made inconsistent claims concerning Burndy-
Japan’s CFC status. Before 1987, Burndy-US owned 50 percent of
the stock of Burndy-Japan but it did not treat Burndy-Japan as a
CFC. Burndy-US first claimed Burndy-Japan as a CFC on its 1987
return. Petitioners changed their position even though Burndy-US
continued to own 50 percent of the stock of Burndy-Japan from
1987 to 1992, and the operational relationship between Burndy-US
and Burndy-Japan did not change during those years; the only
change was the tax law. See Tax Reform Act of 1986 (TRA 1986),
Pub. L. 99-514, sec. 631, 100 Stat. 2269.11
11
Petitioners’ new position in 1987 that Burndy-Japan was
a CFC of Burndy-US coincided with a change in the tax law
effective for tax years beginning in 1987. See sec. 1204 of the
Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, 100 Stat.
2532. Petitioners do not explain why they began to contend
Burndy-Japan was a CFC in 1987; however, it is obvious that their
purpose was to enable Burndy-US to increase its foreign tax
credit and pay less U.S. tax.
- 26 -
Petitioners contend that they derived no U.S. tax benefit by
not treating Burndy-Japan as a CFC before 1987. However, their
representations regarding the pre-1987 years are incomplete and
unconvincing. They deny having Subpart F income for the years
1987 through 1992, and they ask us to infer that they had little
or no Subpart F income from 1983 to 1986. They cite nothing in
the record relating to 1983 through 1986 to support their
contention, and they made no reference to the years before 1983.
The taxpayer bears the burden of proving that it lacks a tax
avoidance motive. Hoffman Motors Corp. v. United States, 473
F.2d 254 (2d Cir. 1973). We are not persuaded that petitioners
derived no U.S. tax benefit from not treating Burndy-Japan as a
CFC before 1987.
A taxpayer may be permitted to invoke the doctrine of
substance over form if the motive of the taxpayer is not
primarily tax avoidance. Hoffman Motors Corp. v. United States,
supra at 257. Petitioners’ reversal of position regarding
whether Burndy-Japan was a CFC was tax motivated. Petitioners
may not invoke the doctrine of substance over form here, and we
need not consider petitioners’ contention that Burndy-US, in
substance, controlled Burndy-Japan in deciding whether Burndy-US
owned more than 50 percent of the voting power of Burndy-Japan.
See Hoffman Motors Corp. v. United States, supra.
- 27 -
In any event, for the purposes of completeness, we consider
petitioners’ contention on the merits. We conclude that the
outcome is the same because, as discussed next, Burndy-Japan was
not a CFC of Burndy-US in either form or substance.
b. Power of Any Burndy-Japan Shareholder To Block
Various Actions by Burndy-Japan
The articles of incorporation require a vote of shareholders
holding more than 80 percent of the stock to: (1) Amend the
articles of incorporation; (2) elect directors and auditors;
(3) change capital; (4) assign the entire or an essential part of
the business of the company; (5) entrust a third party with
management; (6) dispose of profits; (7) acquire or dispose of
shares of other companies; and (8) make or alter license
agreements. Under the 1973 basic agreement, Burndy-US, Furukawa,
and Sumitomo each had the power to veto six important categories
of decisions by Burndy-Japan: (1) Changes in capital; (2)
changes in license agreements; (3) acquisition or sale of shares
in other companies; (4) payment of dividends; (5) transfer of a
major part of the business; and (6) entrusting management to a
third party.
The six veto powers and the 80-percent supermajority
requirements permitted either Furukawa or Sumitomo to block a
wide range of important actions by Burndy-Japan. We believe the
veto powers and supermajority requirements were among the factors
that prevented Burndy-US from controlling Burndy-Japan in 1992.
- 28 -
This Court and the U.S. Court of Appeals for the Eleventh
Circuit made a similar finding in Alumax, Inc. v. Commissioner,
165 F.3d 822, 825 (11th Cir. 1999), affg. 109 T.C. 133 (1997).
One of the issues for decision in Alumax was whether Amax
possessed at least 80 percent of the voting power of the taxpayer
as required to include the subsidiary on a consolidated return.
Sec. 1504.12 Amax owned one class of stock, and the Japanese
shareholders owned a different class of stock. The four
directors elected by Amax had two votes each. The two directors
elected by the Japanese shareholders had one vote each. Thus,
Amax controlled 80 percent of the directors’ votes. The Japanese
shareholders could veto: (1) Mergers; (2) purchase or sale of
any asset worth at least 5 percent of Alumax’s net worth; (3)
partial or complete liquidation or dissolution of Alumax; (4) the
expenditure of capital or disposition of assets worth more than
$30 million; (5) the election or dismissal of Alumax’s chief
executive officer; and (6) the making of loans to affiliated
12
Sec. 1504(a)(2) provides:
(2) 80-percent voting and value test.--The
ownership of stock of any corporation meets the
requirements of this paragraph if it–-
(A) possesses at least 80 percent of the
total voting power of the stock of such
corporation, and
(B) has a value equal to at least 80 percent
of the total value of the stock of such
corporation.
- 29 -
corporations not in the ordinary course of business. Alumax,
Inc. v. Commissioner, supra at 823. Alumax could not take any of
these six actions without the approval of the majority of the
directors elected by the holders of each class of stock.13 Thus,
the Japanese shareholders had a veto power over the six areas
(six veto powers) because they owned a separate class of stock.
The six veto powers reduced Amax’s voting power relative to the
voting power of the Japanese shareholders. Id. at 823. The
Court held in Alumax that the veto powers caused Amax to have
less than 80 percent of the voting power. Id. at 826.
Petitioners contend that the veto powers here were less
important than those in Alumax. We disagree. A comparison of
the veto powers in the instant cases show that they are similar
to those in Alumax. See pp. 11-12, 27-29.
13
Petitioners point out that, in Alumax, Inc. v.
Commissioner, 165 F.3d 822, 823 (11th Cir. 1999), affg. 109 T.C.
133 (1997), if a director elected by a Japanese shareholder
objected to a board action and the Japanese corporation ratified
that objection within 14 days, the board vote would be
ineffective, unless a panel of arbitrators ruled within 14 days
that the vote would not have a material and adverse effect on the
Japanese interests’ investment. However, petitioners did not
discuss how that procedure compares to the arbitration provided
by par. j of the 1973 Basic Agreement. See p. 12. Further, the
U.S. Court of Appeals for the Eleventh Circuit said that “On the
six matters in which the directors voted by class, moreover, the
Amax-elected directors’ voting power effectively declined to
50%.” Id. at 826. As in the instant cases, the Court of Appeals
also said that veto provisions in Alumax, whether or not
exercised, generally discouraged directors from voting against
the Japanese interests. Id. n.4. Here, because of the six veto
powers, Burndy-US did not own more than 50 percent of the voting
power of Burndy-Japan.
- 30 -
Petitioners contend that respondent’s reliance on Alumax
here is inconsistent with Tech. Adv. Mem. 97-14-002 (Apr. 4,
1997) (the TAM). Petitioners contend that the TAM precludes
respondent from relying on a case (such as Alumax) which
interprets the 80-percent test in section 1504 to interpret the
50-percent test in section 957(a).14 We disagree. The TAM
states that a taxpayer may not rely on cases interpreting section
957 to interpret section 1504 because the cases interpreting
section 957 (which the taxpayer cited) allowed the Commissioner,
not the taxpayer, to apply the substance over form doctrine to
prevent taxpayer abuse. It is well established that the
Commissioner may rely on the substance over form doctrine to a
greater extent than taxpayers. See Norwest Corp. v.
Commissioner, 111 T.C. at 140-147; Estate of Durkin v.
Commissioner, 99 T.C. at 572; see also Higgins v. Smith, 308 U.S.
at 477; Founders Gen. Corp. v. Hoey, 300 U.S. at 275; Gregory v.
Helvering, 293 U.S. at 469; Old Mission Portland Cement Co. v.
Helvering, 293 U.S. at 293; Television Indus., Inc. v.
Commissioner, 284 F.2d at 325; Interlochen Co. v. Commissioner,
232 F.2d at 877. Here, respondent, not petitioners, is citing a
case interpreting section 1504. Thus, respondent’s reliance on
Alumax here is consistent with the TAM.
14
Technical advice memoranda “may not be used or cited as
precedent” unless regulations so provide. Sec. 6110(k)(3).
Regulations do not so provide here.
- 31 -
Petitioners contend that the supermajority voting
requirements in the articles of incorporation meant little
because the laws of most U.S. States require that, to change the
number of authorized shares or to sell assets other than in the
usual course of business, an 80-percent majority of shareholders
must approve. Petitioners also contend that the veto powers
differ little from statutory restrictions on domestic corporate
boards provided by the Model Business Corporation Act (MBCA). We
disagree. Petitioners cite no State laws or MBCA provisions that
give 25-percent shareholders the veto powers present in these
cases. The 1973 basic agreement, which created the veto powers
that were in effect in 1992, states that the agreement shall be
construed under Japanese law. Petitioners have not shown whether
State law or MBCA provisions are similar to Japanese law.
Petitioners point out that dividends were more important to
Furukawa and Sumitomo than to Burndy-US because Burndy-US
received royalties and management fees. However, the agreements
between Burndy-Japan shareholders relating to management fees and
royalties expired after 5 years. Burndy-US had no guaranty that
the management fees and royalties would continue; thus, its need
for dividends could increase. Burndy-US’s receipt of royalties
and management fees does not show that Burndy-US controlled
Burndy-Japan.
- 32 -
Petitioners point out that no Burndy-Japan shareholder
exercised any of the six veto powers and contend that this shows
that Burndy-US controlled Burndy-Japan. We disagree; it is more
likely that Furukawa and Sumitomo never exercised the veto powers
because the existence of those powers caused Burndy-US to
cooperate with Furukawa and Sumitomo.
We conclude that the 80-percent vote requirement in the
articles of incorporation and the six veto powers in the 1973
basic agreement reduced Burndy-US’s voting power so it did not
have more than 50 percent of the voting power of Burndy-Japan.
c. Control of Burndy-Japan’s Presidents and Board of
Directors
Petitioners contend that Burndy-US controlled Burndy-Japan
because it had, and exercised, the right to control, choose, and
replace Burndy-Japan’s presidents and board of directors from
1973 to 1993. Petitioners also contend that Burndy-US controlled
the Burndy-Japan board of directors because, under the Burndy-
Japan articles of incorporation and the 1973 basic agreement,
Burndy-US had the right to name 5 of the 9 Burndy-Japan
directors. We disagree.
i. Election of Members of Board of Directors
The 1973 basic agreement stated that the shareholders could
nominate persons to serve as members of the Burndy-Japan board of
directors in proportion to the shareholder’s ownership interests.
The Burndy-Japan articles of incorporation required that, to be
- 33 -
elected, a director must receive the vote of 80 percent of the
shareholders. Thus, Furukawa or Sumitomo could block board
membership for anyone Burndy-US nominated to serve as a director.
The Burndy-Japan shareholders agreed in 1973 that Burndy-US
could nominate four directors and the president. The president
of a Japanese corporation must be a director. ShÇhÇ (the
Commercial Code of Japan), Law No. 48, March 9, 1899, as amended,
at Book II, chap. 4, sec. 261-1, reprinted from Kitagawa, Doing
Business in Japan, app. 5A (1994). Thus, Burndy-US could not
nominate a fifth member of the board of directors to serve as
president unless Furukawa and Sumitomo agreed.
ii. Breaking Tie Votes
Petitioners contend that Burndy-US had the power to break a
tie vote of the Burndy-Japan board of directors because Burndy-US
could name the chairman or president, who could cast a second
vote to break a tie. We disagree. First, Burndy-US could not
unilaterally choose Burndy-Japan’s president for reasons stated
in the previous paragraph. The articles of incorporation provide
that the board of directors could elect a chairman. Thus,
Burndy-US could not unilaterally choose the chairman. Second,
the second vote to break a tie is invalid under Japanese law for
reasons discussed next.
Hideki Kanda (Kanda), petitioners’ witness who is a
professor of law at Tokyo University, cited an article, Horiguchi
- 34 -
in Commentary on Corporate Law, Vol. 4, at 343 (1968), to support
petitioners’ contention that a director may cast more than one
vote to break a tie. However, he also cited an article,
Tatasuta, Corporate Law (Kaishaho) 107-108 (2000), in which the
author said that a director may not do so.
Respondent’s expert in Japanese law, Michael K. Young
(Young), cited two articles, Tanaka, Kaisha Ho Hyoron Jo, p. 370
(1967), and Tanaka & Namaki, Shinpan Kabushiki Kaisha Horitsu
Jitsumu Handobukku, p. 423 (1967), which conclude that a
provision which allows a “second or casting” vote by a chairman,
or president acting for the chairman, to break a tie is invalid
and unenforceable under Japanese law.
Respondent’s witness, Yoshimasa Furuta (Furuta), who is
licensed to practice law in Japan, reviewed Kanda’s report.
Furuta said that he agreed with Young that a provision
authorizing a director to vote a second time to break a tie is
invalid. Furuta said that two standard textbooks on Japanese
corporation law, Kitazawa, Corporation Law (New ed. 1982) at 347,
and 1 Tanaka, Corporation Law 560 (Rev. ed. 1982), state that a
provision authorizing a director to vote a second time to break a
tie is invalid and unenforceable. Furuta also said that Ministry
of Justice publications state that a provision authorizing a
second vote to break a tie is invalid and unenforceable.
- 35 -
Young also cited Kamin, an Osaka District Court case (filed
on June 19, 1953). In Kamin, the Osaka District Court held that
a director may not cast more than one vote on a board resolution.
Young said that Kamin was “confirmed” (not further explained in
the record) by both the Osaka Legal Affairs Bureau, Hanrei Jiho,
No. 117, March 15, 1957, and the Civil Affairs Bureau of the
Ministry of Justice, Minji Ko, No. 772, April 21, 1959.
Kanda said that Kamin has no precedential value because
Japan is not a common law country, but he said that it may have
persuasive value. Kanda said that the district court in Kamin
applied the Japanese commercial code provision literally, but
that the articles by Horiguchi and Tatasuta that he cited state
that the literal approach fell out of favor. Furuta said that
Kamin was published, which he said suggests it was an important
decision. He also said that there are no precedents contrary to
Kamin.
We find Young’s and Furuta’s position to be more convincing
than Kanda’s. We conclude on this record that, under Japanese
law, the president of Burndy-Japan may not cast a tie-breaking
vote if the president has already voted on the matter.
iii. Control of Burndy-Japan’s President and Board
of Directors by Burndy-US
Petitioners contend that Burndy-US controlled Burndy-Japan’s
president and board of directors and dominated Burndy-Japan. We
disagree.
- 36 -
Burndy-US did not control Burndy-Japan’s presidents, Kambe
and Hijikata, from 1973 to 1993. Burndy-US disapproved of Kambe
and Hijikata as presidents and yet did not remove either of them
from office until 1993. In 1993, Burndy-US removed Hijikata
after Burndy-US had increased its stock ownership in Burndy-Japan
from 50 percent to 90 percent. This suggests that Burndy-US
lacked control before 1993.
Petitioners concede that Burndy-US disapproved of Hijikata
as president, but they contend that Burndy-US did not disapprove
of Kambe. Farley described Kambe as honest, practical, and
protective of the interests of Burndy-Japan. Farley recalled two
instances in which Burndy-US deferred to Kambe. Petitioners
contend that Farley’s testimony shows that Burndy-US did not
disapprove of Kambe. We disagree. Cantor credibly testified
that Farley was dissatisfied with Kambe as president.
Petitioners contend that Burndy-US controlled the three
Burndy-US employees, the president, and the five Burndy-Japan
employees who were members of the board. We disagree. Burndy-US
presumably controlled the three Burndy-US employees who were
directors. However, the record does not show that Burndy-US
controlled the five Burndy-Japan employees who were selected as
directors by unanimous agreement of the shareholders.
Petitioners contend Furukawa and Sumitomo agreed in 1973 to
give Burndy-US complete control over Burndy-Japan. We disagree.
- 37 -
Farley testified only that the Japanese partners agreed to give
Burndy-US management control over Burndy-Japan in 1973.15 York
testified that Burndy-US had no financial control over Burndy-
Japan.
Cantor and Farley testified that Furukawa and Sumitomo
provided no input to Burndy-Japan’s day-to-day operations.
Petitioners contend that this shows that Burndy-US controlled
Burndy-Japan. We disagree; it shows only that Burndy-US provided
day-to-day management.
York testified that Furukawa and Sumitomo were merely
passive investors in Burndy-Japan and that Burndy-US neither
sought nor received any input from them. Petitioners contend
that Burndy-US completely dominated Burndy-Japan, including its
corporate direction and strategy, product lines, marketing,
manufacturing, hiring and personnel policies, and financial
decisions. We disagree because: (1) Burndy-US tried
unsuccessfully to force Burndy-Japan to drop the electrical
connector business from 1962 to 1993; (2) Burndy-US tried
unsuccessfully in 1987 to get from Burndy-Japan a list of
products manufactured or sold by Burndy-Japan and information
15
In a Jan. 27, 1973, letter to Burndy-US, which was part
of the negotiations for the 1973 basic agreement, Furukawa and
Sumitomo said: “We have purposely refrained from using the
wording ‘Burndy Corporation to have complete management control
of Burndy-Japan’”. Thus, that language was not included in the
1973 basic agreement.
- 38 -
about Burndy-Japan’s import sales; (3) Burndy-US tried
unsuccessfully to get Burndy-Japan to increase exports and to
provide engineering assistance to Burndy-US’s Hong Kong
subsidiary in 1987; (4) Burndy-US tried unsuccessfully in 1991
and 1992 to get Burndy-Japan to give it copies of Burndy-Japan’s
Japanese patent applications, even though failing to file those
applications with the U.S. patent office within a year could
result in the loss of U.S. patent rights; and (5) Burndy-Japan
sold Burndy-US’s interest in a proprietary product outside Japan
in 1991 without Burndy-US’s approval. We conclude that Burndy-US
did not control or have the right to control the president or
board of directors of Burndy-Japan before 1993, and that Burndy-
US did not otherwise dominate or control Burndy-Japan.
d. Ability To Dissolve Burndy-Japan
Petitioners contend that Burndy-US controlled Burndy-Japan
because it had the power to force Burndy-Japan to dissolve. We
disagree. Petitioners cite no authority to support this
contention. Under sections 94 and 404 of the Japanese Commercial
Code, Law No. 48, March 9, 1899, as amended, reprinted from
Appendix 5A of Doing Business in Japan, Zentaro Kitagawa (Matthew
Bender & Co. 1994), a Japanese corporation dissolves if: (a) So
provided by the terms of the articles of incorporation; (b) it
merges with another corporation; (c) the corporation is bankrupt;
(d) a court orders dissolution; or (e) the shareholders resolve
- 39 -
to do so. Under the Japanese Commercial Code, any shareholder
may ask a court to order dissolution if the shareholders
deadlock. Burndy-US could cause a deadlock, but that would not
necessarily cause a dissolution because a Japanese court could
fashion an alternative remedy. Thus, Burndy-US lacked unilateral
power to force Burndy-Japan to dissolve.16
e. Financial Accounting and Underwood’s Testimony
Generally, for financial accounting purposes, parent
companies and subsidiaries in which the parent owns a controlling
interest may consolidate financial statements. Accounting
Research Bulletin (ARB) No. 51, Consolidated Financial Statements
(August 1959). Burndy-US and Burndy-Japan did not consolidate
their financial statements before 1993. A parent usually owns a
controlling interest if the parent owns a majority voting
interest. ARB 51, par. 2. Petitioners first treated Burndy-
Japan as a CFC for income tax purposes in 1987, following
enactment of a tax law change relating to foreign tax credits
which made it advantageous to do so. See TRA 1986 sec.
1222(a)(1), 100 Stat. 2556. Burndy-US’s ownership interest in
Burndy-Japan did not change between 1973 and 1993. However, in
deciding whether Burndy-US controlled Burndy-Japan in 1992, we do
16
Petitioners’ argument strains credulity because Burndy-
US did not want to dissolve Burndy-Japan. York testified that
dissolution of Burndy-Japan would be apocalyptic for Burndy-US.
Burndy-US never discussed dissolving Burndy-Japan with Furukawa
or Sumitomo.
- 40 -
not consider the fact that Burndy-US and Burndy-Japan did not
file consolidated financial statements because petitioners’
expert, Michael Underwood (Underwood), testified (and respondent
does not dispute) that ARB 51 requires consolidation of a parent
and a subsidiary only if the parent owns a majority of the voting
shares of the subsidiary.
Underwood also testified that, based on Furukawa’s and
Sumitomo’s veto powers, it is reasonable to conclude that Burndy-
US had less control over Burndy-Japan than an owner would have
over a subsidiary if the owner owned a majority of voting shares
of the subsidiary. Underwood’s testimony on this point supports
the conclusion that Burndy-US did not control Burndy-Japan for
tax purposes before 1993.
f. Possibility of Undisclosed Agreements
Petitioners contend that Furukawa and Sumitomo agreed to
give control of Burndy-Japan to Burndy-US in 1973 but did not
want any documents reviewed by MITI to so state because that
would have caused MITI to disapprove the transaction. The
documents in our record did not give Burndy-US control over
Burndy-Japan. The 1973 basic agreement stated that it was the
entire agreement of the Burndy-Japan shareholders and that it
superseded all previous agreements regarding matters in the 1973
basic agreement. We conclude that Furukawa and Sumitomo did not
agree to give Burndy-US control over Burndy-Japan in 1973.
- 41 -
Furukawa and Sumitomo stated in a letter dated January 27,
1973, that they did not want to have any confidential agreements
that would harm their relations with the Japanese Government.
There is no evidence in the record that Furukawa and Sumitomo
acted contrary to that stated intent. We conclude that the
Burndy-Japan shareholders did not have an undisclosed agreement
giving Burndy-US control over Burndy-Japan in 1973.
g. Whether Burndy-US Paid a Control Premium for
Burndy-Japan Stock It Acquired in 1973 or 1993
Petitioners contend that Burndy-US paid a control premium
when it acquired 50 percent of the stock of Burndy-Japan in 1973
and did not pay a control premium when it acquired an additional
40 percent of that stock in 1993. We disagree on both points.
First, Cantor stated in a memorandum to York in 1980 that he
refused to pay a control premium when he negotiated the price
of Burndy-Japan stock in 1973. Cantor testified at trial that
Burndy-US paid a control premium in 1973, but he could not
explain the conflict between his testimony and his 1980
memorandum.
Second, a 1978 Burndy-US memo to Farley states that Burndy-
US should be prepared to pay a 20-percent control premium for
increasing its ownership of Burndy-Japan stock to more than the
50 percent it then owned.
Third, FCI said in its 1993 annual report to shareholders
that it acquired control of Burndy-Japan in 1993 when Burndy-US
- 42 -
acquired 40 percent of the stock of Burndy-Japan, bringing its
total ownership to 90 percent.
Respondent’s expert, Keith Reams (Reams), concluded that
Burndy-US paid Furukawa and Sumitomo a control premium when it
acquired an additional 40 percent of the stock of Burndy-Japan in
1993. Petitioners’ expert, Masami Hashimoto (Hashimoto),
concluded that Burndy-US did not. Reams’s analysis on this point
was more convincing than Hashimoto’s. KPMG used various methods
to appraise Burndy-Japan stock in 1993, resulting in 34 different
estimates of value. Reams considered all of KPMG’s estimates.
Reams appraised (independently from KPMG) the shares that Burndy-
US bought in 1993 and concluded that a 30-percent control premium
had been paid. Respondent’s expert, Mukesh Bajaj (Bajaj), said
in his rebuttal to Hashimoto’s report that most of the KPMG
estimates of the value of Burndy-Japan stock in 1993 were less
than the price Burndy-US paid. This suggests that Burndy-US paid
a premium.
Petitioners contend that Reams’s testimony is irrelevant
because Reams did not use the liquidation method that respondent
asks us to apply in deciding whether Burndy-US satisfies section
957(a)(2). We disagree; Reams’s testimony is relevant to whether
Burndy-US paid a control premium in 1973 or 1993.
Hashimoto did not appraise the shares that Burndy-US bought
in 1993. He selected 1 of KPMG’s 34 estimates (¥8,868 per share)
- 43 -
that he said used the most appropriate methodology. He inferred
that Burndy-US did not pay a control premium because the agreed
price of ¥8,750 per share was ¥118 less than the KPMG estimate
that he chose.
As a basis for his inference, Hashimoto used Furukawa’s and
Sumitomo’s offer to sell Burndy-Japan stock in 1993 for ¥10,900
per share which was about 20 percent higher than the sales price
of ¥8,750 per share. Burndy-US did not accept that offer. We
infer nothing from Furukawa’s and Sumitomo’s offer to sell
because we do not know why Furukawa and Sumitomo asked for
payment of ¥10,900 per share, and because this unaccepted offer
does not establish the fair market value of Burndy-Japan stock.
Premier Packing Co. v. Commissioner, 12 B.T.A. 637, 643 (1928);
Parker v. Commissioner, 11 B.T.A. 1336, 1351 (1928); Wallis
Tractor Co. v. Commissioner, 3 B.T.A. 981, 1001-1002 (1926).
Hashimoto opined that Burndy-US paid a 12-percent control
premium for Burndy-Japan stock in 1973. Hashimoto said that
Burndy-US paid a premium in 1973 equal to the difference between
the final sales price and 80 percent of Furukawa’s and Sumitomo’s
initial offer. Hashimoto discounted the initial offer by 20
percent to account for the fact that Furukawa and Sumitomo each
reduced their shareholdings in Burndy-Japan from 33 to 25
percent.
- 44 -
Hashimoto said that Burndy-US paid a control premium because
Burndy-US gained control over Burndy-Japan in 1973. We disagree
for reasons stated above pp. 27-41.
Hashimoto was inconsistent in his approach to 1973 and 1993.
For 1973, he relied on Furukawa’s and Sumitomo’s proposal based
on an analogous company method based on data for 2 years. For
1993, he chose a KPMG value based on an analogous company method
using data for 5 years. Finally, Hashimoto did not verify the
accuracy of the data that Furukawa and Sumitomo used in their
initial offer.
We conclude that Burndy-US did not pay Furukawa and Sumitomo
a control premium to acquire Burndy-Japan stock in 1973 but did
in 1993.
h. Conclusion Relating to the Voting Power Test
Petitioners point out that we and other courts have held
that a 50-percent shareholder has more than 50 percent of the
voting power of all of the stock if the taxpayer actually
controls the corporation, citing Koehring Co. v. United States,
583 F.2d 313 (7th Cir. 1978); Estate of Weiskopf v. Commissioner,
64 T.C. 78 (1975); Kraus v. Commissioner, 59 T.C. 681 (1973); and
Garlock Inc. v. Commissioner, 58 T.C. 423 (1972). Petitioners
cite these cases to support their contention that Burndy-US owned
more than 50 percent of the voting power of Burndy-Japan. We
disagree. These cases are distinguishable because, here, the
- 45 -
veto powers, supermajority requirements, and the board of
director selection rules prevented Burndy-US from controlling
Burndy-Japan.
Section 1.957-1(b)(1), Income Tax Regs., provides that a
taxpayer satisfies the 50-percent voting power test of section
957(a) if the taxpayer meets one of three requirements, all
related to the power to control, or to exercise the powers of,
the board of directors. Section 1.957-1(b)(1), Income Tax Regs.,
provides:
(b) Percentage of total combined voting
power owned by United States shareholders.--(1)
Meaning of combined voting power. In determining
for purposes of paragraph (a) of this section
whether United States shareholders own the
requisite percentage of total combined voting
power of all classes of stock entitled to vote,
consideration will be given to all the facts and
circumstances of each case. In all cases,
however, United States shareholders of a foreign
corporation will be deemed to own the requisite
percentage of total combined voting power with
respect to such corporation –-
(i) If they have the power to elect,
appoint, or replace a majority of that body
of persons exercising, with respect to such
corporation, the powers ordinarily exercised
by the board of directors of a domestic
corporation;
(ii) If any person or persons elected or
designated by such shareholders have the power,
where such shareholders have the power to elect
exactly one-half of the members of such governing
body of such foreign corporation, either to cast a
vote deciding an evenly divided vote of such body
or, for the duration of any deadlock which may
arise, to exercise the powers ordinarily exercised
by such governing body; or
- 46 -
(iii) If the powers which would ordinarily be
exercised by the board of directors of a domestic
corporation are exercised with respect to such
foreign corporation by a person whom such
shareholders have the power to elect, appoint, or
replace.
Burndy-US does not meet the requirements of section 1.957-
1(b)(1)(i), Income Tax Regs., because Burndy-US lacked the power
to elect, appoint, or replace a majority of the board of
directors. See discussion pp. 32-38.
Burndy-US does not meet the requirements of section 1.957-
1(b)(1)(ii), Income Tax Regs., because it lacked the power to
break tie votes and could not unilaterally exercise powers
ordinarily exercised by a domestic board of directors. See
discussion pp. 32-38.
Burndy-US does not meet the requirements of section 1.957-
1(b)(1)(iii), Income Tax Regs., because the veto powers and
supermajority requirements prevented Burndy-US from exercising
powers over Burndy-Japan ordinarily exercised by a domestic board
of directors. See discussion pp. 27-32.
We conclude that Burndy-US did not own more than 50 percent
of the voting power of Burndy-Japan in 1992.
- 47 -
3. Whether Burndy-US Owned More Than 50 Percent of the
Value of Burndy-Japan Stock
A foreign corporation is a CFC if U.S. shareholders own more
than 50 percent of the total value of its stock. Sec. 957(a)(2).
Petitioners contend that Burndy-US owned more than 50 percent of
the value of Burndy-Japan stock in 1992. We disagree.
a. Applicable Legal Standard
Petitioners contend that the value of Burndy-Japan stock
held by Burndy-US shareholders exceeded 50 percent of the total
value of the three blocks of stock held by the shareholders of
Burndy-Japan. Petitioners rely on Mariani Frozen Foods, Inc. v.
Commissioner, 81 T.C. 448, 468-469 (1983), affd. sub nom. Gee
Trust v. Commissioner, 761 F.2d 1410 (9th Cir. 1985). The
taxpayer in Mariani Frozen Foods sought to avoid foreign personal
holding company status by showing that it did not own more than
50 percent of the value of outstanding stock for purposes of
section 552(a)(2).17 We held that the value of foreign
corporation stock held by U.S. shareholders was more than 50
percent of the total value of the blocks of stock held by all
shareholders. Id. at 471. We agree with petitioners that the
standard in Mariani Frozen Foods applies here.
17
In Mariani Frozen Foods, Inc. v. Commissioner, 81 T.C.
448, 469 (1983), affd. sub nom. Gee Trust v. Commissioner, 761
F.2d 1410 (9th Cir. 1985), the taxpayers conceded that they would
lose under a liquidation approach. However, we held against the
taxpayers under a different test without considering the
liquidation approach further.
- 48 -
b. Whether the Value of Burndy-Japan Stock Owned by
Burndy-US Was Greater Than 50 Percent of the Value
of the Blocks of Stock Held by All Shareholders
Petitioners contend that the value of Burndy-Japan stock
owned by Burndy-US was more than 50 percent of the value of the
three blocks of stock owned by its three shareholders.
Petitioners contend that a control premium applies in valuing the
Burndy-Japan stock owned by Burndy-US because Burndy-US owned 50
percent of the stock and controlled Burndy-Japan during the years
in issue. Similarly, petitioners contend that a minority
discount or discount for lack of marketability applies to
Furukawa’s and Sumitomo’s holdings.18
We find the testimony of respondent’s experts, Bajaj and
Alan C. Shapiro (Shapiro), about the rationale for applying
control premiums and minority discounts to be useful in analyzing
this issue. They testified that a premium applies in valuing a
large block of stock if the holder of that block has the power to
extract private benefits that are disproportionate to benefits
available to minority shareholders (private benefits analysis).19
18
Petitioners do not state the extent of the control
premium, minority discount, or discount for lack of
marketability. Rather they contend that any control premium,
however small, would cause Burndy-US to own more than 50 percent
of the value of Burndy-Japan stock.
19
Barclay & Holderness, Private Benefits From Control of
Public Corporations, 25 J. Fin. Econ. 371, 374 (1989), lists
private benefits such as higher salaries for individual
stockholders, below-market transfer prices for corporate
(continued...)
- 49 -
Petitioners did not offer any expert testimony relating to the
merits of the private benefits analysis and did not cross-examine
respondent’s experts on this point.20
Burndy-US could not extract private benefits from Burndy-
Japan because Furukawa and Sumitomo could veto several important
types of corporate actions. These veto powers gave Furukawa and
Sumitomo leverage over actions not subject to veto through the
indirect or “log-rolling” effect; i.e., the ability of Furukawa
or Sumitomo to pressure Burndy-US to act as requested on a matter
not subject to veto to keep Furukawa or Sumitomo from vetoing an
action subject to their veto powers.
Petitioners contend we should disregard Bajaj’s testimony
because he was biased. We disagree and find Bajaj’s analysis to
be helpful in deciding this issue.
Petitioners contend that they found no case or published
analysis which supports Bajaj’s theory. However, the private
benefits analysis is discussed by Shleifer and Vishny in “A
Survey of Corporate Governance”, 52 J. Fin. 737, 747 (1997), and
by Barclay and Holderness in “Private Benefits From Control of
19
(...continued)
stockholders, control amenities for individual stockholders, and
synergies in production for corporate stockholders.
20
Petitioners’ counsel asked Bajaj whether he had used the
words “private benefits” prior to his testimony in these cases
and whether a certain hypothetical situation resulted in private
benefits but did not ask Bajaj any other questions about the
merits of the private benefits analysis.
- 50 -
Public Corporations”, 25 J. Fin. Econ. 371-395 (1989). Barclay
and Holderness said shareholders value the ability to “use their
voting power primarily to extract corporate benefits to the
exclusion of other shareholders”. See also Bogdanski, Federal
Tax Valuation, par. 4.03[1][e][v] n.171 (1996) (citing Barclay &
Holderness and discussing why control enhances value); Barclay &
Holderness, “Negotiated Block Trades and Corporate Control”, 46
J. Fin. No. 3, 861, 873 (1991).
Petitioners contend that Burndy-US extracted private
benefits from Burndy-Japan in the form of the management fee that
Burndy-Japan paid Burndy-US, which petitioners contend greatly
exceeded the cost of management. We disagree. Furukawa and
Sumitomo agreed to pay the management fee; it was not “extracted”
over their objection.
Petitioners contend that York testified that the management
fee greatly exceeded the cost of management. We disagree. York
testified that the management fee far exceeded the cost of
sending executives to Burndy-Japan. The cost of providing
management services included more than the cost of sending
employees to Burndy-Japan; Burndy-US did a substantial amount of
management work in the United States.
Petitioners contend that Burndy-US received private benefits
through receipt by Burndy-US and FCI from Burndy-Japan of
increasing amounts of royalties, commissions, and corporate
- 51 -
profits. We disagree. Burndy-US, Furukawa, and Sumitomo
negotiated the amount of the royalties, commissions, and profit
distributions at arm’s length. Generally, no disproportionate
benefit results from an arm’s-length negotiation. United States
v. Davis, 370 U.S. 65, 72 (1962) (the value of two properties
exchanged in an arm’s-length transaction is presumed to be
equal); Elmhurst Cemetery Co. v. Commissioner, 300 U.S. 37, 39
(1937) (the value assigned to property by a buyer and seller
dealing at arm’s length is persuasive evidence of its fair market
value); S. Natural Gas Co. v. United States, 188 Ct. Cl. 302, 412
F.2d 1222, 1252 (1969) (the price of property sold in an arm’s-
length transaction is presumed to be its fair market value).
Petitioners point out that in United States v. Parker, 376
F.2d 402 (5th Cir. 1967), the U.S. Court of Appeals for the Fifth
Circuit held that a taxpayer who owned 80 percent of the
outstanding stock of a corporation owned more than 80 percent of
the value of the stock of that corporation. Here, the veto
provisions, supermajority requirements, and rules for electing
directors increased the value of the Burndy-Japan stock held by
Furukawa and Sumitomo relative to the value of the stock held by
Burndy-US and decreased the value of the Burndy-Japan stock held
by Burndy-US relative to the value of the stock held by Furukawa
and Sumitomo. See Alumax, Inc. v. Commissioner, 165 F.3d at 825.
- 52 -
The minority shareholders in Parker apparently had no veto
powers. Thus, Parker is distinguishable.
Petitioners contend that Burndy-Japan stock owned by Burndy-
US was entitled to a control premium because Hashimoto so
testified. Petitioners also contend that a minority discount or
discount for lack of marketability applies to Furukawa’s and
Sumitomo’s holdings, causing Burndy-US to own more than 50
percent of the total value of the stock of Burndy-Japan. We
disagree for reasons stated pp. 27-32 and note 18 above.
c. Conclusion Relating to the Stock Value Test
We conclude that Burndy-US did not own more than 50 percent
of the value of Burndy-Japan stock in 1992.
B. Whether Petitioners Are Liable for Withholding Tax
1. Contentions of the Parties
Respondent contends that petitioners are liable for
withholding tax under section 1442 on constructive dividends paid
by Burndy-US to FCI in 1993. Respondent contends that Burndy-US
engaged in transactions involving FCI in 1993 in which FCI
received $24,031,995 more than the value of property that Burndy-
US received in exchange. We use the term “excess value” to refer
to that asserted excess in value.
Petitioners contend that the value of property that Burndy-
US transferred to FCI in 1993 equaled the value of property it
received and that all of the transactions to which respondent
- 53 -
refers were at arm’s length. Petitioners further contend that,
under the U.S.-France Tax Treaty (the Treaty)21 in effect in
1993, withholding tax does not apply under the circumstances
present here.
We conclude that Burndy-US transferred excess value to FCI
in 1993 in the amounts discussed below, and that the excess value
is a constructive dividend to FCI which is subject to withholding
tax under section 1442.
2. Whether Burndy-US Transferred Excess Value to FCI in
1993
Respondent contends that, in 1993, Burndy-US transferred
assets to FCI that were worth more than the value of assets
Burndy-US received from FCI (excess value). Respondent contends
that Burndy-US transferred excess value to FCI in each of the
following five ways: (a) Burndy-US transferred to FCI European
subsidiaries and cash worth more than 40 percent of the Burndy-
Japan stock that FCI transferred to Burndy-US; (b) Burndy-US
transferred additional value to FCI by using an inflated exchange
rate to value French francs; (c) Burndy-US transferred additional
value to FCI by using exchange rates for the cost of yen in
French francs on July 30 and August 2, 1993, that differed from
21
References to the Treaty are to the Convention With
Respect to Taxes on Income and Property, July 28, 1967, U.S.-Fr.,
19 U.S.T. 5281; Protocol to the Convention With Respect to Taxes
on Income and Property as Amended by the Protocols of Oct. 12,
1970, Nov. 24, 1978, Jan. 17, 1984, and June 16, 1988, T.I.A.S.
6518 and 11967.
- 54 -
the rates published by the Pacific Exchange Rate Service;
(d) Burndy-US paid for FCI’s loss that resulted from the decrease
in the cost of yen (in French francs) after FCI bought yen which
it used to buy 40 percent of Burndy-Japan stock and before FCI
paid the yen to Furukawa and Sumitomo; and (e) Burndy-US
transferred value to FCI by paying FCI $6 million for a covenant
not to compete that benefited FCI and its subsidiaries.
Respondent contends that each of these methods was a separate
mechanism by which Burndy-US transferred excess value to FCI. We
discuss each of these contentions next.
a. Transfer of European Subsidiaries and Cash by
Burndy-US to FCI in Exchange for 40 Percent of
Burndy-Japan Stock
Burndy-US transferred to FCI the stock of FC-Belgium and FC-
Switzerland in 1993 and the stock of FC-Spain and FC-Italy in
1994. Respondent contends that the value of those subsidiaries
in 1993 was $17,577,252 more than the value of the 40-percent
interest in Burndy-Japan that FCI transferred to Burndy-US.
Respondent relies on the fact that Burndy-US reported on its 1993
income tax return that the fair market value of 40 percent of
Burndy-Japan was $53,050,302 and the fact that the parties
stipulated that the fair market value of those subsidiaries was
$17,577,252 more than $53,050,302.
Petitioners contend that Burndy-US did not transfer excess
value to FCI in 1993 when Burndy-US transferred the stock of its
- 55 -
European subsidiaries and cash to FCI in exchange for 40 percent
of the stock of Burndy-Japan.22 Petitioners contend: (1) The
value of the stock of the subsidiaries did not exceed the value
of a 40-percent interest in Burndy-Japan; (2) the value of the
stock of the European subsidiaries that Burndy-US reported on its
1993 income tax return is not relevant to deciding whether
Burndy-US paid excess value to FCI; and (3) Burndy-US or
Framatome US distributed the stock of FC-Spain and FC-Italy to
FCI in 1994 rather than 1993, so that any associated transfer of
value occurred in 1994. We disagree in part with both parties.
According to the petition, Burndy-US reported on its 1993
return that it transferred $53,050,302 in stock and cash to FCI
in exchange for 40 percent of the Burndy-Japan stock.23
Respondent contends that, in so doing, Burndy-US reported that 40
percent of the Burndy-Japan stock was worth $53,050,302.
Petitioners state in their brief that 40 percent of the Burndy-
Japan stock was worth $51,411,007. We accept respondent’s
position that 40 percent of the Burndy-Japan stock was worth
$53,050,302 because that amount is more favorable for
petitioners.
22
Alternatively, petitioners contend that, if the transfer
of a 40-percent interest in Burndy-Japan resulted in a dividend
to FCI, the dividend was $3,046,360.
23
The return is not in the record.
- 56 -
The parties stipulated that the fair market value of the
stock of the four European subsidiaries was $70,627,554, which is
$17,577,252 more than $53,050,302. Thus, we conclude that the
value of the stock of the four European subsidiaries exceeded the
value of 40 percent of the Burndy-Japan stock by $17,577,252.
Burndy-US transferred the stock of FC-Spain and FC-Italy to
FCI in 1994. However, respondent contends that FCI
constructively received the stock of FC-Spain and FC-Italy in
1993. We disagree.
A shareholder does not constructively receive a dividend
during a year if the shareholder lacks an unrestricted legal
right to demand payment in that year. Bush Bros. v.
Commissioner, 73 T.C. 424, 438-439 (1979), affd. 668 F.2d 252(6th Cir. 1982). The September 20, 1993, agreement between FCI
and Burndy-US stated that Burndy-US was to transfer the stock of
FC-Italy and FC-Spain to FCI in 1994,24 and that the transfer of
stock of FC-Italy and FC-Spain to FCI was to be effective on
January 1, 1994. FCI agreed to defer its receipt of that stock
to 1994. That stock was Burndy-US’s payment for the stock of
Burndy-Japan. Thus, FCI did not constructively receive the stock
of FC-Italy and FC-Spain in 1993.
24
Alternatively, respondent contends that FCI received a
constructive dividend from the bargain sale of that stock in
1994, a year not before us.
- 57 -
We conclude that Burndy-US transferred to FCI excess value
of $15,807,495 ($14,677,250 for FC-Belgium and $1,130,245 for FC-
Switzerland) in 1993 by transferring the stock of FC-Belgium and
FC-Switzerland to FCI.25
b. Exchange Rates
Respondent contends that Burndy-US transferred $2,140,546 to
FCI by using an inflated exchange rate to value French francs in
1993 when Burndy-US transferred its European subsidiaries and
cash to FCI in exchange for a 40-percent interest in Burndy-
Japan. Respondent bases this contention on exchange rates for
December 30, 1993, published by the Federal Reserve Bank of New
York. Petitioners contend that the exchange rates that Burndy-US
and FCI used were the result of arm’s-length negotiations, and
that the published rates are entitled to no weight. We disagree
in part with both parties.
FCI agreed to sell 595,200 shares of Burndy-Japan stock to
Burndy-US for FF300,240,285 (or $53,050,302, the amount Burndy-US
reported on its income tax return). The exchange rate published
by the Federal Reserve Bank of New York was FF5.8975 to $1 for
25
Burndy-US reported on its 1993 return that it paid
$17,690,552 in cash as a part of that transaction. Petitioners
contend that Burndy-US paid only $17,289,162. We need not decide
which amount is correct because respondent did not determine that
a constructive dividend resulted from the $17,690,552 cash
component. Similarly, we need not decide petitioners’ contention
that we must use the fair market value of francs, not Burndy-US’s
tax basis in those francs, to decide which amount is correct.
- 58 -
December 30, 1993. Using that rate, the value of FF300,240,285
was $50,909,756 (300,240,285/5.8975) on December 30, 1993. The
difference between the value of FF300,240,285 ($53,050,302) and
the value of those French francs based on the exchange rate
published by the Federal Reserve Bank of New York ($50,909,756)
is $2,140,546.
Petitioners contend that FCI and Burndy-US bargained at
arm’s length and that respondent improperly relied on Burndy-US’s
tax return to show that the Burndy-Japan stock was worth
$53,050,302. We doubt that FCI and Burndy-US bargained at arm’s
length because they were related. We conclude that FCI and
Burndy-US used an inflated exchange rate to transfer excess value
to FCI from Burndy-US in 1993.
We agree with petitioners that the correct valuation date is
December 29, 1993 (not December 30). The exchange rate published
for that date by the Federal Reserve Bank of New York was
FF5.8400 to $1. Thus, on December 29, 1993, FF300,240,285 was
worth $51,411,008 (300,240,285/5.84). The difference between the
value of FF300,240,285 ($53,050,302) and the value of those
French francs based on the published exchange rate for December
29, 1993 ($51,411,008) is $1,639,294.
We agree with petitioners that not all of the $1,639,294 is
excess value for 1993 because Burndy-US did not transfer the
shares of all four subsidiaries in 1993. The values of the
- 59 -
subsidiaries when sold are as follows: $35,000,000 for FC-
Belgium, $2,168,245 for FC-Switzerland, $4,100,000 for FC-Spain,
and $11,668,757 for FC-Italy. The value of FC-Belgium and FC-
Switzerland ($37,168,245) is 70 percent of the total value of the
four subsidiaries ($52,937,002). Seventy percent of $1,639,294
is $1,147,506. We conclude that Burndy-US transferred excess
value in the amount of $1,147,506 to FCI in 1993 through the use
of inflated exchange rates.
c. FCI’s Purchase of Yen With French Francs on July 30 and
August 2, 1993
FCI paid FF300,356,423 on July 30 and August 2, 1993, to buy
yen to pay Furukawa and Sumitomo for 40 percent of the Burndy-
Japan stock. Respondent contends that FCI paid $387,76726 too
much for those yen and required Burndy-US to pay that excessive
26
Respondent calculates this amount as follows. On July
30, 1993, FCI bought ¥2,620,728,213 for FF150,000,000 at a
conversion rate of ¥.05723 to FF1. The published exchange rate
on that day was ¥.056700 to FF1. ¥2,620,728,213 equaled
FF148,595,289 using the published rate. FCI paid FF1,404,711
(FF150,000,000 less FF148,595,289) more than the published rate
when it bought ¥2,620,728,213 on July 30, 1993. FF1,404,711 is
$235,571 according to the published exchange rate of FF5.9630 to
$1 on July 30, 1993. Respondent contends that FCI received a
$152,196 constructive dividend due to the Aug. 2, 1993, exchange
rate difference. On Aug. 2, 1993, FCI bought ¥2,589,271,787 for
FF150,356,423 at a conversion rate of ¥.058069 to FF1. On that
day the published exchange rate was .057715 yen to FF1. Thus, on
Aug. 2, 1993, ¥2,589,271,787 equaled FF149,439,822 based on that
exchange rate. FCI paid FF916,601 (FF150,356,423 less
FF149,439,822) more than the published exchange rate when it
bought ¥2,589,271,787 on Aug. 2, 1993. FF916,601 is $152,196
according to the published exchange rate of FF6.0225 to $1 on
Aug. 2, 1993. $235,571 plus $152,196 = $387,767.
- 60 -
cost to FCI. Respondent contends that the cost was excessive
because exchange rates for French francs to yen published by the
Pacific Exchange Rate Service were less than the rates that FCI
negotiated with unrelated banks. We disagree. FCI bought the
yen after bona fide arm’s-length negotiations with unrelated
banks.27 We conclude that Burndy-US did not transfer excess
value to FCI in 1993 by using exchange rates for the cost of yen
in French francs on July 30 or August 2, 1993, that differed from
rates published by the Pacific Exchange Rate Service.
d. Payment by Burndy-US of the Loss That Resulted From the
Decrease in the Cost of Yen (in French Francs) After
FCI Bought Yen Which FCI Used To Buy 40 Percent of
Burndy-Japan Stock and Before FCI Paid the Yen to
Furukawa and Sumitomo
FCI lost FF22,145,063 (FF300,356,423 less FF278,211,360) or
$3,926,430 resulting from the decrease in the cost of yen
relative to French francs between July 30 or August 2, 1993, when
FCI paid French francs to buy yen with which it bought 40 percent
of Burndy-Japan stock, and September 29, 1993, when FCI paid the
yen to Furukawa and Sumitomo.28 Burndy-US paid the FF22,145,063
27
In light of this conclusion, we need not decide
petitioners’ contention that constructive dividends resulting
from different exchange rates is a new issue.
28
On July 30 and Aug. 2, 1993, FCI paid a total of
FF300,356,423 to buy ¥5,208,000,000. FCI paid ¥5,208,000,000 to
Furukawa and Sumitomo on Sept. 29, 1993. The yen to franc
exchange rate decreased between the time that FCI bought the yen
and Sept. 29, 1993. On Sept. 29, 1993, FCI calculated that ¥100
traded for FF5.342. At that conversion rate, FF278,211,360
(continued...)
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to FCI. Respondent contends that Burndy-US paid, and thus
transferred excess value of, $3,926,430 to FCI for exchange rate
losses (hedging loss) that FCI incurred when the cost of yen
decreased after FCI bought the yen and before FCI paid the yen to
Furukawa and Sumitomo.
Petitioners contend that FCI did not receive excess value
from Burndy-US because Burndy-US ultimately received the 40-
percent interest in Burndy-Japan. Petitioners contend that the
exchange rate losses due to the reduced cost of yen were Burndy-
US’s losses and not FCI’s. We disagree. FCI and Burndy-US
structured the transaction so that FCI and not Burndy-US bought
the yen, paid it to Furukawa and Sumitomo, and received the 40-
percent interest in Burndy-Japan. Petitioners now seek to recast
the form of the transaction as if Burndy-US, and not FCI, had
bought the yen, paid it to Furukawa and Sumitomo, and received 40
percent of the stock of Burndy-Japan. FCI and Burndy-US may not
do so because, ordinarily, taxpayers are bound by the form of the
transaction they have chosen; taxpayers may not in hindsight
recast the transaction as one that they might have made in order
to obtain tax advantages. Estate of Leavitt v. Commissioner, 875
F.2d 420, 423 (4th Cir. 1989), affg. 90 T.C. 206 (1988); see
Grojean v. Commissioner, 248 F.3d 572, 576 (7th Cir. 2001)
28
(...continued)
equals ¥5,208,000,000. FF22,145,063 equaled $3,926,430 using the
Sept. 29, 1993, published conversion rate of FF5.6400 = $1.
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(taxpayers are bound by the structure of their transaction),
affg. T.C. Memo. 1999-425.
We conclude that Burndy-US transferred excess value of
$3,926,430 to FCI in 1993 by paying FCI’s hedging loss in that
amount.
e. The Covenants Not To Compete
The US-Europe covenant not to compete had a fair market
value of $8 million, of which $2 million is attributable to TRW’s
not competing in the U.S. and $6 million is attributable to TRW’s
not competing in Europe (European component of the US-Europe
covenant). Petitioners contend that Burndy-US paid $6 million to
FCI and received the European component of the covenant not to
compete worth $6 million and that this benefited Burndy-US and
its subsidiaries. Respondent contends that Burndy-US transferred
$6 million to FCI by paying FCI that amount for a covenant not to
compete that benefited FCI and its subsidiaries. In essence,
respondent contends that Burndy-US received nothing for the $6
million it paid to FCI. We disagree.
FC-Italy made automotive air bag connectors for the European
market. FCI obtained the European component of the US-Europe
covenant not to compete primarily to benefit FC-Italy. FC-Italy
was a subsidiary of Burndy-US on December 22, 1992, when Burndy-
US acquired the covenant not to compete, and throughout 1993, the
year in issue. Thus, Burndy-US’s payment to FCI for the European
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component of the covenant not to compete benefited Burndy-US’s
subsidiary, FC-Italy.
FC-Germany, a subsidiary of FCI in 1993, also manufactured
automotive air bag connectors. Respondent contends that buying
the European component of the US-Europe covenant not to compete
resulted in a constructive dividend to FCI because FC-Germany
could also benefit from the European component of the US-Europe
covenant not to compete. We disagree. FCI acquired the European
component of the US-Europe covenant not to compete to benefit FC-
Italy, not FC-Germany. FCI obtained two other covenants not to
compete (Germany and Austria) to benefit FC-Germany. A corporate
distribution is not a constructive dividend if the distribution
was not primarily for shareholder benefit. See Sammons v.
Commissioner, 472 F.2d 449, 452 (5th Cir. 1972), affg. in part,
revg. in part on other issues, and remanding T.C. Memo. 1971-145;
Gulf Oil Corp. v. Commissioner, 89 T.C. 1010, 1030 (1987), affd.
914 F.2d 396 (3d Cir. 1990). The US-Europe covenant not to
compete was not primarily for the benefit of FCI.
We conclude that Burndy-US did not transfer excess value to
FCI in 1993 by paying $6 million for the European component of
the US-Europe covenant not to compete.
f. Conclusion About Transferred Excess Value
Burndy-US transferred $20,881,431 ($15,807,495 + $3,926,430
+ $1,147,506) in excess value to FCI in 1993. Burndy-US
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distributed and FCI received excess value of $15,807,495 in 1993
when Burndy-US transferred the stock of FC-Belgium and FC-
Switzerland to FCI. Burndy-US transferred excess value of
$3,926,430 to FCI in 1993 because Burndy-US paid that amount to
FCI for the currency exchange loss. Finally, Burndy-US paid
$1,147,506 to FCI as a result of the exchange rate it used for
French francs.
3. The U.S.-France Tax Treaty and 1988 Protocol
Petitioners contend that, even if Burndy-US transferred
excess value to FCI, they are not liable for withholding tax
because the U.S.-France Tax Treaty limits application of the
withholding tax to dividends “actually distributed.” According
to petitioners, a transfer of excess value is a constructive
dividend and is not “actually distributed.” We disagree.
Article 9(2)(b) of the Treaty states:
(2) Dividends derived from sources within a
Contracting State by a resident of the other
Contracting State may also be taxed by the former
Contracting State but the tax imposed on such dividends
shall not exceed--
* * * * * * *
(b) When the recipient is a corporation,
5 percent of the amount actually distributed
* * *.
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The 1988 Protocol29 defines “dividends” to include “income
treated as a distribution by the taxation laws of the Contracting
State of which the company making the distribution is a
resident.” 1988 Protocol at Art. IV, amending Art. 9, par. 7 of
the Treaty.
Petitioners contend that the 1988 Protocol does not define
the phrase “actually distributed”. Petitioners contend that
neither the Treaty nor the 1988 Protocol applies here because
Burndy-US did not distribute the amounts which respondent
contends give rise to constructive dividends. We disagree.
Burndy-US distributed $20,881,431 in excess value to FCI in
1993.30
29
1988 Protocol at Art. IV, amending Art. 9, par. 7 of the
Treaty, defines “dividend” as:
income from shares, “jouissance” shares or “jouissance”
rights, mining shares, founders shares or other rights,
not being debt claims, participating in profits, as
well as income treated as a distribution by the
taxation laws of the Contracting State of which the
company making the distribution is a resident.
[Emphasis added.]
30
In light of our conclusion that the Treaty and 1988
Protocol do not bar application of withholding tax, we need not
decide petitioners’ contention that 26 C.F.R. sec.
514.21(a)(3)(i) (2000), French Tax Treaty Regs., is invalid.
That regulation provides that “the gross amount actually
distributed includes amounts constructively received." Id. Sec.
514.21(a)(3)(i), French Tax Treaty Regs., was filed on Jan. 3,
1969, well before the 1988 Protocol. T.D. 6986, 1969-1 C.B. 365,
369, 375.
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The notice of deficiency for withholding tax for 1993
states:
1(a) Deemed Dividend Distributions
It is determined that during the taxable year 1993
deemed dividend distributions were made by you to
Framatome Connectors International (FCI), a French
corporation, in the amount of $54,006,312.00, as
computed below, which are subject to withholding tax as
computed in “5(a).”
Petitioners contend that respondent’s use of the phrase
“deemed dividend distributions” establishes that Burndy-US did
not actually distribute dividends to FCI. We disagree. Burndy-
US actually distributed the constructive dividends in these cases
to FCI in 1993 because FCI received excess value from Burndy-US
in 1993. Petitioners’ position assumes that only non-
constructive dividends are distributed. We disagree. A
dividend, deemed or constructive, is distributed when the
shareholder receives excess value from the corporation as
occurred here.
The parties stipulated that Burndy-US sold all of the stock
of its European subsidiaries to FCI. Petitioners contend that
the stipulation prevents us from concluding that Burndy-US sold
only some of the stock and that the rest were dividends. We
disagree. We do not construe the stipulation to bar our
consideration of respondent’s theory that Burndy-US paid
constructive dividends to FCI.
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A constructive dividend is distributed when a corporation
transfers excess value to its shareholders from corporate
earnings and profits. A corporate distribution for the
shareholder’s benefit is a constructive dividend. Sec. 316(a);
Rushing v. Commissioner, 441 F.2d 593 (5th Cir. 1971), affg. 52
T.C. 888, 893 (1969); Sachs v. Commissioner, 277 F.2d 879 (8th
Cir. 1960), affg. 32 T.C. 815 (1959); Gulf Oil Corp. v.
Commissioner, 89 T.C. at 1028; Rapid Elec. Co. v. Commissioner,
61 T.C. 232, 239 (1973). Petitioners contend that any excess
value that Burndy-US transferred to FCI in 1993 is not a
constructive dividend because it was the result of arm’s-length
negotiations between FCI and Burndy-US. We disagree. We doubt
that FCI and Burndy-US bargained at arm’s length because they
were related. See discussion pp. 57-58. We conclude that
Burndy-US paid $20,881,431 in constructive dividends to FCI in
1993.
4. Conclusion
We conclude that petitioners are liable for withholding tax
on $20,881,431 of constructive dividends that Burndy-US paid to
FCI in 1993.
To reflect concessions and the foregoing,
Decisions will be
entered under Rule 155.