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Organizations Urge Rehearing in Whirlpool Branch Income Case

JAN. 27, 2022

Whirlpool Financial Corp. et al. v. Commissioner

DATED JAN. 27, 2022
DOCUMENT ATTRIBUTES

Whirlpool Financial Corp. et al. v. Commissioner

WHIRLPOOL FINANCIAL CORPORATION; CONSOLIDATED SUBSIDIARIES,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

United States Court of Appeals
FOR THE SIXTH CIRCUIT

On Appeal from the United States Tax Court
Nos. 13986-17, 13987-17 — Albert G. Lauber, Judge

BRIEF OF AMICI CURIAE
SILICON VALLEY TAX DIRECTORS GROUP, SOFTWARE FINANCE AND TAX EXECUTIVES COUNCIL, UNITED STATES COUNCIL FOR INTERNATIONAL BUSINESS, NATIONAL FOREIGN TRADE COUNCIL, INFORMATION TECHNOLOGY INDUSTRY COUNCIL, AND TECHNOLOGY IN SUPPORT OF APPELLANTS' PETITION FOR PANEL REHEARING OR REHEARING EN BANC

Thomas M. Peterson
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
28th Floor
San Francisco, California 94105
T. 415.442.1000

Roderick K. Donnelly
Neal A. Gordon
MORGAN, LEWIS & BOCKIUS LLP
1400 Page Mill Road
Palo Alto, California 94304
T. 650.843.4000

Michelle L. Andrighetto
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110
T. 617.341.7712

Counsel for Silicon Valley Tax Directors Group

ADDITIONAL COUNSEL

Amicus

Counsel

Software Finance and Tax Executives Council (SoFTEC)

Mark E. Nebergall
P.O. Box 66141
Washington, DC 20035
(202) 486-3725

United States Council for International Business (USCIB)

Richard G. Minor
404 Silver Creek Trail
Chapel Hill, NC 27514
(202) 288-1463

National Foreign Trade Council (NFTC)

Benjamin Wastler
1225 New York Ave. NW,
Suite 650B
Washington, DC 20005
(202) 464-2034

Information Technology Information Council (ITI)

John S. Miller
700 K St. NW,
Suite 600
Washington, DC 20001
(202) 626-5731

Technology Network (TechNet)

Benjamin M. Mundel
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, DC 20005
(202) 736-8157

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae Silicon Valley Tax Directors Group makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

Roderick K. Donnelly
Counsel for Silicon Valley Tax Directors Group

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae Software Finance and Tax Executives Council makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

Mark E. Nebergall
Counsel for Software Finance and Tax Executives Council

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae United States Council for International Business makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

Richard G. Minor
Counsel for United States Council for International Business

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae National Foreign Trade Council makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

Benjamin Wastler
Counsel for National Foreign Trade Council

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae Information Technology Industry Council makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

John S. Miller
Counsel for Information Technology Industry Council

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

In accordance with Sixth Circuit Rule 26.1, Amicus Curiae Technology Network makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

Dated: January 27, 2022

Benjamin M. Mundel
Counsel for Technology Network (TechNet)


TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE

ARGUMENT

I. THE PANEL MAJORITY'S DECISION TO CRAFT ITS OWN, NOVEL INTERPRETATION OF § 954(d)(2) WARRANTS FURTHER PANEL OR EN BANC REVIEW

A. The panel majority's interpretation of § 954(d)(2) overlooks critical statutory text, and misinterprets other text

1. The statutory mandate to treat income attributable to branch activities as “derived by a wholly owned subsidiary” is not addressed by the panel majority and is of critical importance

2. The panel majority misinterprets the statutory mandate concerning the deemed income of the fictional subsidiary, namely, that it be subpart F income of the CFC

B. The panel majority's novel interpretation of § 954(d)(2) creates the potential for double taxation, contrary to the presumption against it

II. THE NEED FOR FURTHER REVIEW IS CRITICAL: U.S. CORPORATIONS COMPETING INTERNATIONALLY NEED CERTAINTY, AND HAVE FOR MORE THAN 57 YEARS RELIED ON TREASURY REGULATIONS UNDER § 954(D)(2); THE PANEL MAJORITY'S DECISION CREATES HUGE UNCERTAINTIES AFFECTING BILLIONS OF DOLLARS

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)

Chicago v. Fulton, 592 U.S. __ (2021)

Cottage Savings Ass'n v. Commissioner, 499 U.S. 554 (1991)

United States v. Byrum, 408 U.S. 125 (1972)

United States v. Supplee-Biddle Hardware Co., 265 U.S. 189 (1924)

Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020)

Whirlpool Fin. Corp. v. Commissioner, 154 T.C. 176–177

STATUTES

I.R.C.

§§ 951–965 (Subpart F)

§ 951(a)(1)(A)

§ 954(d)

§ 954(d)(1)

§ 954(d)(2)

Pub. L. No.

94-12, § 602(b), 89 Stat. 26 (1975)

99-514, 100 Stat. 2085 (1986)

103-66, § 13239(d), 107 Stat. 312 (1993)

Revenue Act of 1962, § 12(a) (76 Stat. 1009)

Tax Reform Act of 1986

RULES & REGULATIONS

27 Fed. Reg. 12759 (Dec. 17, 1962)

Fed. R. App. P. 35(a)

T.D.

6734, 29 Fed. Reg. 6392 (May 15, 1964)

9438, 73 Fed. Reg. 79334 (Dec. 29, 2008)

9563, 76 Fed. Reg. 78545 (Dec. 19, 2011)

Treas. Reg.

§ 1.954-3(a)(4)

§ 1.954-3(b)

§ 1.954-3(b)(2)(ii)(f)

OTHER AUTHORITIES

Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders (3rd Ed. 1971)

Conf. Rep. No. 2508 (1962)

H.R. (Conf.) Rep. No. 2508 (1962)

H.R. Rep. No. 1447 (1962)

J. Isenbergh, International Taxation (6th Ed. 2021)

S.R. Fimberg, The Foreign Base Company Engaged in Selling Activities: A Reappraisal of the Conduct of Foreign Business, 17 U.S.C. Tax Institute 237 (1965)


INTERESTS OF AMICI CURIAE1

“Courts have properly been reluctant to depart from an interpretation of tax law which has been generally accepted when the departure could have potentially far-reaching consequences.” United States v. Byrum, 408 U.S. 125, 135 (1972).

The amici — with thousands of member corporations whose aggregate market capitalization exceeds $10 trillion, whose members' businesses span many industries and comprise a significant portion of the U.S. economy, and whose interests could be dramatically affected by the panel decision — hereby urge this Court to grant rehearing or rehearing en banc. Petitioner Whirlpool Financial Corporation has given the Court ample reasons to question the 2-1 panel decision. Amici hereby add to these reasons and identify the serious consequences for U.S. multinational corporations attendant to the panel majority's unprecedented and startling ruling to interpret the “branch rule” of I.R.C. § 954(d)(2) without regard to Treasury's longstanding implementing regulations.In accord with Byrum's admonition, this Court should be “reluctant” to allow such a sweeping change in established law without en banc review.

Amici's members (i) are predominantly U.S. multinational corporations (many are Fortune 100 companies) with extensive foreign subsidiaries and operations; (ii) include many that conduct annually billions of dollars of intercompany and third-party sales transactions potentially subject to § 954(d)(2); and (iii) have foreign corporate structures and sales transaction procedures developed in reliance on the detailed branch rule regulations promulgated by Treasury.

By minting a new interpretation of § 954(d)(2) — one that shuts out application of the regulations — the panel majority sows confusion in an already complex area of international tax law. The panel majority's novel interpretation would adversely affect amici's members. Amici respectfully submit that this case satisfies the “exceptional importance” prong of Fed. R. App. P. 35(a) and therefore merits rehearing en banc, if the panel itself does not grant rehearing.

ARGUMENT

I. THE PANEL MAJORITY'S DECISION TO CRAFT ITS OWN, NOVEL INTERPRETATION OF § 954(d)(2) WARRANTS FURTHER PANEL OR EN BANC REVIEW

A. The panel majority's interpretation of § 954(d)(2) overlooks critical statutory text, and misinterprets other text

The panel majority ignores a critical part of § 954(d)(2) and misinterprets another part. This textual misreading expands the statutory branch rule far beyond what Congress intended and disregards Treasury regulations in place since 1964.

If two conditions are met, § 954(d)(2) deems two consequences —

For purposes of determining foreign base company sales income [“FBCSI”] in situations in which the carrying on of activities by a controlled foreign corporation [“CFC”] through a branch . . . has substantially the same effect as if such branch . . . were a wholly owned subsidiary corporation deriving such income, under regulations prescribed by the Secretary the income attributable to the carrying on of such activities of such branch . . . shall be treated as income derived by a wholly owned subsidiary of the [CFC] [“1st Consequence”] and shall constitute [FBCSI] of the [CFC] [“2nd Consequence”].

The panel majority ignores the 1st Consequence and the phrase “under regulations prescribed by the Secretary,” and misreads the 2nd Consequence. Under the majority's reading, if the two requirements in § 954(d)(2) are met, income of the branch is FBCSI, full stop — independent of § 954(d)(1) and Treasury's regulations.

To be sure, this Court “can affirm a decision of the district court on any grounds supported by the record.” Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020). In interpreting a statute, courts use “traditional tools of statutory construction” to determine if Congress had “an intention on the precise question at issue.” Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). If so, “that intention is the law and must be given effect.” Id. But here, the panel majority's decision runs contrary to § 954(d)(2)'s text and its legislative history.

1. The statutory mandate to treat income attributable to branch activities as “derived by a wholly owned subsidiary” is not addressed by the panel majority and is of critical importance

The panel majority ignores the 1st Consequence — that income attributable to the carrying on of branch activities “shall be treated as income derived by a wholly owned subsidiary of the [CFC].” This was error. If all tax-deferred income of a branch is FBCSI (without consulting § 954(d)(1)), no purpose is served by treating “income attributable to the carrying on of such activities of a branch” as “income derived by a wholly owned subsidiary of the [CFC].” Statutory interpretations that render key statutory provisions superfluous are to be avoided. Chicago v. Fulton, 592 U.S. __, Slip Op. *5 (2021).

This oversight is serious: the 1st Consequence — properly interpreted — determines if branch income is treated as FBCSI. At first blush, § 954(d)(2) doesn't appear to explain the relevance of treating income attributable to branch activities as “income derived by a wholly owned subsidiary” of the CFC. Perhaps this is why the panel majority ignored it. But this lack of apparent explanation is enough to show statutory ambiguity and justify resort to Treasury's regulations. The Tax Court noted this ambiguity in § 954(d)(2). Whirlpool Fin. Corp. v. Commissioner, 154 T.C. 176–177. And, in any case, Congress directed resort to regulations by telling us the 1st Consequence follows “under regulations prescribed by [Treasury].”

The Treasury regulations explain the relevance of treating the branch as a subsidiary of the CFC, and deeming its income: they treat such subsidiary as transacting with its owner CFC, thereby creating a related-party transaction to which the machinery of § 954(d)(1) is applied. The regulations are necessary to determine how the two conditions of § 954(d)(2) lead to the two consequences. A detailed understanding of the Treasury regulations isn't needed to understand that the panel majority's serious oversight warrants review.

Congress was clear that the purpose of the 1st Consequence is to determine whether the branch's income is FBCSI: § 954(d)(2) “provides that foreign branches of a [CFC] shall, under certain circumstances, be treated as wholly owned subsidiary corporations for purposes of determining the [FBCSI] of the [CFC], and treats [FBCSI] of the branch as [FBCSI] of the [CFC].” H.R. (Conf.) Rep. No. 2508, at 31 (1962) (emphasis added).

The panel majority's oversight stems from misreading the legislative history. The majority quotes President Kennedy's statements and a 1961 Joint Committee Report. Slip Op. at *2–3, 10–12. But President Kennedy's proposal — to end all U.S. tax deferral by foreign subsidiaries — was rejected by Congress in favor of ending deferral in precise, narrower circumstances. Congress said, “[y]our committee's bill does not go as far as the President['s] recommendations,” and FBCSI targeted “the separation of the sales function [from manufacturing activities].” H.R. Rep. No. 1447 at 57, 58 (1962) (emphasis added).

2. The panel majority misinterprets the statutory mandate concerning the deemed income of the fictional subsidiary, namely, that it be subpart F income of the CFC

The 1st Consequence — when properly understood under Treasury regulations — deems certain branch income to be “treated as income derived by a wholly owned subsidiary [i.e., the branch, treated as a subsidiary]” of the CFC. But more is needed. Subpart F of the I.R.C. (§§ 951–965) isn't concerned with income of imaginary corporations. So the 2nd Consequence provides that the deemed FBCSI of the fictional CFC subsidiary corporation is actual FBCSI of its owner — the real CFC.

This point is crucial because of how subpart F income is taxed. A U.S. shareholder is taxed only on its share of a CFC's subpart F income. § 951(a)(1)(A). If income isn't earned by a CFC of a U.S. shareholder, subpart F doesn't apply. The 1st Consequence only determines whether a branch's income is FBCSI by treating the branch as a separate subsidiary. But the 1st Consequence doesn't attribute the branch's income to a CFC — the 2nd Consequence does that. This is clear from the Conference Report: § 954(d)(2) “provides that foreign branches of a [CFC] shall, under certain circumstances, be treated as wholly owned subsidiary corporations for purposes of determining the [FBCSI] of the [CFC] [1st Consequence], and treats [FBCSI] of the branch as [FBCSI] of the [CFC] [2nd Consequence].” Conf. Rep. No. 2508, at 31 (1962) (emphasis added).

The panel majority misreads the 2nd Consequence as treating all of a branch's tax-deferred income as FBCSI. The branch rule, so interpreted, would apply much more broadly than Congress intended.

B. The panel majority's novel interpretation of § 954(d)(2) creates the potential for double taxation, contrary to the presumption against it

Under the majority's interpretation of § 954(d)(2), double taxation of U.S. shareholders could result, contrary to the strong presumption against it. See, e.g., United States v. Supplee-Biddle Hardware Co., 265 U.S. 189, 195–196 (1924).

Consider an example. Suppose CFC X, organized in country A, has branch Y, organized in country B, and that Y buys personal property and engages in minor packaging activities that don't rise to the level of “manufacturing” under Treas. Reg. § 1.954-3(a)(4). Suppose Y sells the property to X, which resells it to a related party for use outside country A. Income derived from X's related-party sale would potentially be FBCSI under § 954(d)(1) because X doesn't satisfy the manufacturing exception of § 1.954-3(a)(4). Under the majority's interpretation of § 954(d)(2), income “attributable” to Y's activities, which would include X's sales income, would — if subject to “deferral of tax” (Slip Op. at 12) — also be FBCSI under § 954(d)(2).

Treasury's branch rule regulations — disregarded by the majority — prevent such double taxation. Former (1964) and current Treas. Reg. § 1.954-3(b)(2)(ii)(f) provide that if income derived by a branch “would be classified as [FBCSI] . . . under [§ 954(d)(1)],” the branch won't be treated as a separate corporation with respect to such income — in other words, § 954(d)(2) doesn't apply.

Because the panel's interpretation of § 954(d)(2) allows for double taxation in the absence of congressional intent, and because Treasury itself has recognized the impropriety of such a result, further review is needed.

II. THE NEED FOR FURTHER REVIEW IS CRITICAL: U.S. CORPORATIONS COMPETING INTERNATIONALLY NEED CERTAINTY, AND HAVE FOR MORE THAN 57 YEARS RELIED ON TREASURY REGULATIONS UNDER § 954(D)(2); THE PANEL MAJORITY'S DECISION CREATES HUGE UNCERTAINTIES AFFECTING BILLIONS OF DOLLARS

Fifty years ago the Supreme Court counseled courts to exercise great caution before departing from generally accepted interpretations of tax law. Byrum, 408 U.S. at 135. Harsh effects can result from novel rulings that upset prior expectations. A level tax playing field is necessary to allow U.S. corporations to effectively compete abroad. The panel's decision is at odds with these rules.

The panel majority finds in § 954(d)(2) “no . . . ambiguity” of the sort “incapable of resolution by means of all the tools of statutory construction.” Slip. Op. at 9. But the § 954(d)(2) branch rule is one of the most complicated provisions in subpart F, which is itself among the most opaque parts of the I.R.C. See J. Isenbergh, International Taxation, ¶ 70.9 (6th Ed. 2021) (Subpart F “is widely regarded as one of the most complex and difficult pieces of legislation in existence. This widespread perception is in large part correct.”); Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders, ¶ 17.31 at 17-14 (3rd Ed. 1971) (“[T]he rules of subpart F reach and never leave a lofty plateau of complexity. . . .”). The panel majority's finding of statutory lucidity would surprise tax law scholars. See, e.g., S.R. Fimberg, The Foreign Base Company Engaged in Selling Activities: A Reappraisal of the Conduct of Foreign Business, 17 U.S.C. Tax Institute 237, 262 (1965) (“Because neither the statute nor the Committee Report explain at length the manner in which the branch rule is intended to operate, the Regulations are especially important in this regard.”).

Paragraph 954(d)(2) explicitly gives Treasury authority to regulate concerning the branch rule. Treasury issued proposed regulations in 1962 (27 Fed. Reg. 12759 (Dec. 17, 1962)) — the same year § 954(d)(2) was promulgated (§ 12(a) of the Revenue Act of 1962 (76 Stat. 1009)) — and finalized the regulations in 1964 (T.D. 6734, 29 Fed. Reg. 6392 (May 15, 1964)). Treas. Reg. § 1.954-3(b) has a precise, lengthy protocol for determining whether — for a CFC conducting activities through a branch outside its home country — the use of such branch has “substantially the same tax effect” as if the branch were a wholly-owned subsidiary corporation of the CFC.2 This protocol specifies the income to be allocated to the branch or the remainder of the CFC, and the substantially-the-same-tax-effect determination turns on a percentage-point-precision comparison of actual and hypothetical effective tax rates in the countries involved. The panel majority replaces the surgical precision of Treas. Reg. § 1.954-3(b) with the simple inquiry of whether the CFC's activities through a foreign branch “had a substantial tax-deferral effect.” Slip Op. at 13. The majority asserts that Treasury's regulation did much more than what the Supreme Court in 1825 called “fill[ing] up the details.” Slip Op. at 14.

A problem with this blunt approach is that, given the regulations, U.S. shareholders of CFCs have — since 1964 — used precise regulatory criteria to make a “substantially the same tax effect” determination under § 954(d)(2). U.S. multinationals with foreign manufacturing and selling operations have for almost 60 years made important decisions about where to locate subsidiaries, branches, plants, and employees based on the detailed guidance in Treas. Reg. § 1.954-3(b), which turns with precision on local country tax rates and activity locations, among other criteria. Amici's member companies annually conduct hundreds of billions of dollars of foreign sales, and planned their foreign corporate structures based on Treasury's branch rule regulations. The panel majority casts doubt on this planning.

Congress has made no material changes to § 954(d) since its 1962 enactment.3 Paragraph 954(d)(2) was reenacted without change as part of the Tax Reform Act of 1986. Pub. L. No. 99-514, 100 Stat. 2085 (1986). “Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.” Cottage Savings Ass'n v. Commissioner, 499 U.S. 554, 561 (1991). Thus, while branch rule regulations in effect have congressional approval, the panel majority disregards them.

CONCLUSION

This case merits rehearing.

Dated: January 27, 2022

Respectfully submitted,

Roderick K. Donnelly
Neal A. Gordon
MORGAN, LEWIS & BOCKIUS LLP
1400 Page Mill Road
Palo Alto, California 94304
(650) 843-4000
rod.donnelly@morganlewis.com
neal.gordon@morganlewis.com

Thomas M. Peterson
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
28th Floor
San Francisco, California 94105
(415) 442-1000
thomas.peterson@morganlewis.com

Michelle L. Andrighetto
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110
(617) 341-7712
michelle.andrighetto@morganlewis.com

Attorneys for Silicon Valley Tax Directors Group

Mark E. Nebergall
P.O. Box 66141
Washington, DC 20035
(202) 486-3725
mnebergall@softwarefinance.org

Attorney for Software Finance and Tax Executives Council

Richard G. Minor
404 Silver Creek Trail
Chapel Hill, NC 27514
(202) 288-1463
rminor@uscib.org

Attorney for United States Council for International Business

Benjamin Wastler
1225 New York Ave. NW
Suite 650B
Washington, DC 20005
(202) 464-2034
bwastler@nftc.org

Attorney for National Foreign Trade Council

John S. Miller
700 K St. NW
Suite 600
Washington, DC 20001
(202) 626-5731
jmiller@itic.org

Attorney for Information Technology Industry Council

Benjamin M. Mundel
SIDLEY AUSTIN LLP
1501 K St., NW
Washington, DC 20005
(202) 736-8157
bmundel@sidley.com

Attorney for Technology Network (TechNet) 

FOOTNOTES

1 No party's counsel authored this brief in whole or part. No party or party's counsel contributed money that was intended to fund preparing or submitting this brief. No person other than the amici curiae and their counsel contributed money that was intended to fund preparing or submitting this brief.

2 Treasury in 2008 and 2011 promulgated new § 954(d)(2) regulations — relevant in contract manufacturing situations — which compound the complexity without changing the fundamental clockwork. T.D. 9438, 73 Fed. Reg. 79334 (Dec. 29, 2008); T.D. 9563, 76 Fed. Reg. 78545 (Dec. 19, 2011).

3 Congress changed § 954(d) to address agricultural commodities (Pub. L. No. 94-12, § 602(b), 89 Stat. 26 (1975)) and unprocessed timber (Pub. L. No. 103-66, § 13239(d), 107 Stat. 312 (1993)).

END FOOTNOTES

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