Forum
U.S. Supreme Court
Case Status
Decided
Docket Number
Term
Cert. Denied
Lower Court Opinion
Questions Presented
1. Whether, as the Federal Circuit and the Second Circuit have held in conflict with the Fifth and Eighth Circuits, it is proper to evaluate the economic substance of a cross-border transaction based on neither its pre-tax nor post-tax viability, but instead based on a hybrid approach that considers the foreign taxes that must be paid without considering the U.S. tax credits that are presumptively available.
2. Whether, and to what extent, the “economic substance” doctrine can be used as a means for disregarding longstanding and well-developed foreign tax credit rules with which the taxpayer has fully complied, as opposed to a means to address questions that arise in the application of specific statutory and regulatory provisions.
Case Updates
Cert. petition denied
March 07, 2016
The petition for writ of certiorari was denied.
U.S. Chamber urges Supreme Court to review use of economic substance doctrine to override foreign tax credits
October 29, 2015
In its brief, the U.S. Chamber urged the Supreme Court to address a circuit split relating to the application of the “economic substance” doctrine to override the foreign tax credit provisions of the Internal Revenue Code. The brief argues that the economic substance doctrine should be applied only narrowly and that applying the doctrine to disallow attempts to avoid double taxation conflicts with the express purpose of the foreign tax credit and imposes costs on the economy by undermining predictability in the Tax Code.
Scott P. Martin of Gibson, Dunn & Crutcher LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.
Case Documents
- Opinion -- Salem v. U.S. (Federal Circuit).pdf
- Cert. Petition -- Salem v. U.S. (SCOTUS).pdf
- U.S. Chamber Amicus Brief -- Salem v. U.S. (SCOTUS).pdf