US Tax Court rules that UK windfall tax is creditable

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

US Tax Court rules that UK windfall tax is creditable

Two taxpayers have each won separate, but related, cases in the US Tax Court on whether the UK windfall tax is creditable for US federal tax purposes.

Two taxpayers have each won separate, but related, cases in the US Tax Court on whether the UK windfall tax is creditable for US federal tax purposes.

In 1979, the UK government began to privatise many state-owned companies. In private hands, the companies grew strongly and earned large profits. The Labour Party came to power in 1997, and Parliament approved its plan for a windfall tax in July of that year, imposing the charge on 32 privatised companies in the UK. The IRS position was that the windfall tax on US subsidiaries in the UK was not an income tax and not a creditable foreign tax for US tax purposes. They denied PPL's claim for a refund of $786,804 from its 1997 federal tax bill. The refund also related to a dividend distribution from the company's UK subsidiary, which the parent company repaid after it was rescinded.

In his decision in PPL Corp vs Commissioner on September 9, Judge Halpern determined that the foreign tax does qualify as a creditable tax in accordance with section 901(a) of the Internal Revenue Code. The judge cited section 1.901-2 (a), which he said rejects the IRS's view that the court could not consider anything other than the text of the windfall tax statute when determining whether the foreign tax qualifies as an income tax. The decision in Entergy Corp vs Commissioner followed as a memorandum and directly referred to the legal reasoning in PPL Corp. Entergy's UK subsidiary was called London Electricity, PPL's was South Western Electricity.

Partners Stephen Gardner and William O'Brien of Cooley Godward Kronish represented Entergy. Partners Richard May, Mark Bierbower and associate Timothy Jacobs of Hunton & Williams represented PPL. Hunton & Williams declined to comment on the case.

"It is the nature of the UK tax which is unique," said Gardner. "The nature of the UK statute and the statute's language created some issue of whether or not it was an income tax."

The court's decision to consider factors other than just the text of the statute has significant implications for the international tax community.

"The court's endorsement of a broad scope of interpretation in both cases is important for any taxpayer involved in foreign activities," said Gardner.

more across site & shared bottom lb ros

More from across our site

New reforms represent the most seismic shift in Canadian TP legislation since its enactment and a clear inflection point for MNEs, ITR has heard
Spain did not transpose EU VAT rules for SMEs or works of art; in other news, an increased VAT threshold came into force in South Africa
While the IBS incorporates taxable events previously covered by state and municipal taxes, its governance and operational logic represent a significant departure from the legacy model
The new office on the fourth floor of 4 More London will span 14,230 square feet, with the potential to expand to the first and second floors
MNEs now face a shift from modelling to execution as the side‑by‑side deal forces tax teams to upgrade systems, harmonise data, and prevent costly pillar two mismatches
As recent surveys suggest a disconnect between AI adoption and employee engagement, the big four risk digging themselves into a strategic hole
Almost three-quarters of surveyed tax professionals are concerned about inaccurate AI outputs; in other news, Dentons hired a partner from CMS to lead its Belgian tax team
Long-running, high-value and complex enquiries are a significant reason for HM Revenue and Customs’s increased TP yield, experts suggest
Landmark legal updates in India have led companies to prioritise specialised tax advisers over accountants, ITR has found
Brazil’s shift to a nationwide consumption tax is more than conceptual; it fundamentally transforms municipal revenue, enforcement, and administrative disputes
Gift this article