U.S. Supreme Court

Case Status


Docket Number



2012 Term

Oral Argument Date

February 20, 2013


Questions Presented

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.

Case Updates

Supreme Court holds UK tax can be claimed for foreign tax credit

May 20, 2013

The Supreme Court reversed the decision of the Third Circuit and held that the tax at issue may be claimed for foreign tax credit.

U.S. Chamber files amicus brief

December 20, 2012

NCLC urged the Supreme Court to reverse the Third Circuit's decision and reject the IRS Commissioner's hyperformalistic application of the credit for foreign “excess profit taxes” under section 901of the tax code. In this case, the IRS denied a tax credit to the plaintiff company saying that the taxes it paid overseas did not qualify for the section 901 tax credit. NCLC argued in its amicus brief that the IRS Commissioner's rigidly formalistic approach should be rejected as an administrative overreach that breaks with the historical understanding of this particular tax provision. Historically, the understanding of whether a section 901 tax credit was available has turned on the economic substance of the foreign tax assessment. The approach advocated the the IRS Commissioner and adopted by the Third Circuit improperly ignores the substance of the British windfall tax at issue here. Additionally, NCLC argued that the Commissioner's position is opportunistic and inconsistent with the Government's usual emphasis on substance over form.

Case Documents