Internal Revenue Code

PPL Corporation v. Commissioner of Internal Revenue

Between 1984 and 1996 the Government of the United Kingdom privatized 32 state-owned utility companies. The Government then instituted a one-time twenty-three percent tax, called a "windfall tax," on the privatized companies based on the difference between each company's profits and sale price. Petitioner PPL Corporation, an energy company, owned a 25 percent share of one of the utility companies that the Government of the United Kingdom privatized. After PPL Corporation paid the tax, it filed a tax claim with the Internal Revenue Service, asserting that PPL Corporation was eligible for a foreign tax credit under Internal Revenue Code § 901, but the Internal Revenue Service denied PPL Corporation's claim. PPL Corporation argues that the windfall tax targets income and therefore qualifies PPL Corporation for credit under § 901. PPL adds that the calculation of the tax involves the value of the company’s net gain. The Commissioner of Internal Revenue argues that the tax is not a tax on income per se but rather a tax on the value of a company. The Commissioner adds that the calculation of the tax measures the ability of a company to generate income. A holding for PPL threatens to undermine the consistency and uniformity of the U.S. tax code as well as curtailing the power of the Commissioner of Internal Revenue to interpret the law. However, a holding for the Commissioner may subject taxpayers in PPL’s position to double taxation.

Questions as Framed for the Court by the Parties: 

To avoid double taxation, section 901 of the Internal Revenue Code allows U.S. corporations a tax credit for income, war profits, or excess profits taxes paid to another country. This case involves application of section 901 to a "windfall tax" imposed by the United Kingdom. Although it is undisputed that the tax's practical effect is to impose a 51.75% tax on the "excess profits" certain companies earned in the four years after they were privatized, the Third Circuit-at the Commissioner's urging-deemed the tax non--creditable because the U.K. statute nominally taxes the difference between two numbers, one of which is driven exclusively by profitability during the four-year period, rather than nominally taxing the profits themselves. In a case arising out of the same U.K. tax, same tax court proceedings, and same evidentiary record, the Fifth Circuit reached the opposite conclusion and affirmed the Tax Court's considered view. Recognizing that it was creating a clear circuit split, the Fifth Circuit affirmed that courts must look beyond the form and labels of a foreign tax statute and consider the tax's practical operation and intended effect when determining whether it is creditable for U.S. tax purposes.

The question presented is:

Whether, in determining the creditability of a foreign tax, courts should employ a formalistic approach that looks solely at the form of the foreign tax statute and ignores how the tax actually operates, or should employ a substance based approach that considers factors such as the practical operation and intended effect of the foreign tax.

Issue

Should a U.S. company receive U.S. tax credit for paying the United Kingdom’s windfall tax?

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