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The rules in Regs. §1.882-5 that disregard interbranchborrowings and loans are balanced by the rulesthat equate the U.S. ratio to the global ratio. If theU.S. branch funds a third-party loan with an interbranchborrowing, the interbranch borrowing and thecorresponding interest expense are disregarded, but ifthat reduces the U.S. ratio below the global ratio, theU.S. interest expense deduction is correspondingly increased.Similarly, if the U.S. branch funds an interbranchloan by borrowing from a third party, the interbranchloan and the corresponding interest incomeare disregarded, but the ‘‘scaleback’’ rule of Regs.§1.882-5 correspondingly reduce the bank’s U.S. interestexpense deduction. Indeed, the result of disregardinginterbranch borrowings and loans is on averagefavorable to the foreign bank because the interestrate‘‘spread’’ associated with these transactions is nottaxed by the United States and, if the bank’s hometaxing jurisdiction follows a ‘‘territorial’’ taxationprinciple, may not be taxed in the home country either.19Because the profits of financial intermediation resultfrom a paper-thin margin between the rates of intereston the loans they make and the borrowings thatfund them, even a tiny variation in the ratio of debt toloans or in the rate used to calculate the interest expensededuction can have a large impact on the marginand on the taxable income of the financial intermediary.For NatWest, the rules of Regs. §1.882-5 sogreatly increased the margins on its U.S. lending businessthat it was willing to challenge their applicationin court.Notwithstanding the promulgation of Regs.§1.882-5 in 1980 (interpreting statutory language enactedas part of the Foreign Investors Tax Act of1966), NatWest had continued to deduct interest expenseon the U.S. Branch’s interbranch borrowings.When the Internal Revenue Service (‘‘IRS’’) examinedNatWest’s 1981-1987 returns, it disallowed thededuction of interbranch interest and re-calculated thebank’s interest expense deduction under Regs.§1.882-5. NatWest paid the resulting deficiencies andsued for refunds on the ground that Regs. §1.882-5was not consistent with the 1975 income tax treaty betweenthe United States and the United Kingdom (the‘‘1975 U.S.-U.K. Treaty’’ or the ‘‘Treaty’’).20
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