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 2025

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also related to a dividend distribution from the company's UK subsidiary, which the parent company repaid after it was rescinded.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

An EY survey of almost 2,000 tax leaders also found that only 49% of respondents feel ‘highly prepared’ to manage an anticipated surge of disputes
The international tax, audit and assurance firm recorded a 4% year-on-year increase in overall turnover to hit $11bn
Awards
View the official winners of the 2025 Social Impact EMEA Awards
CIT as a proportion of total tax revenue varied considerably across OECD countries, the report also found, with France at 6% and Ireland at 21.5%
Erdem & Erdem’s tax partner tells ITR about female leader inspirations, keeping ahead of the curve, and what makes tax cool
ITR presents the 50 most influential people in tax from 2025, with world leaders, in-house award winners, activists and others making the cut
Cormann is OECD secretary-general
Woldenberg is CEO of Chicago toymaking company Learning Resources
Lula, as he is commonly known, is Brazil’s president
Agarwal is director for indirect tax operations at shopping mall operator Majid Al Futtaim
Gift this article