United States - Tax Treatment for “Foreign Sales Corporations” (WT/DS108): Report of the Appellate Body

Summary

INTRODUCTION

The United States and the European Communities appeal certain issues of law and legal interpretations in the Panel Report, United States - Tax Treatment for “Foreign Sales Corporations” (the “Panel Report”). The Panel was established to consider a complaint by the European Communities with respect to “Sections 921- 927 of the Internal Revenue Code and related measures establishing special tax treatment for ‘Foreign Sales Corporations’ ('FSCs’)”. Pertinent aspects of this “FSC measure” are described in Section II below.

In the Panel Report, circulated on 8 October 1999, the Panel concluded that, through the FSC measure:

(a) the United States has, except as provided in the Agreement on Agriculture, acted inconsistently with its obligations under Article 3.1(a) of the SCM Agreement by granting or maintaining export subsidies prohibited by that provision;

(b) the United States has acted inconsistently with its obligations under Article 3.3 of the Agreement on Agriculture (and consequently with its obligations under Article 8 of that Agreement):

- by providing export subsidies listed in Article 9.1(d) of the Agreement on Agriculture in ex-cess of the quantity commitment levels specified in the United States’ Schedule in respect of wheat;

- by providing export subsidies listed in Article 9.1(d) of the Agreement on Agriculture in respect of all unscheduled products.

With respect to its conclusion regarding the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”), the Panel recommended that the Dispute Settlement Body (the “DSB”) request the United States “to withdraw the FSC subsidies without delay”. With respect to its conclusions regarding the Agreement on Agriculture, the Panel recommended that the DSB request the United States to bring the FSC measure into conformity with its obligations in respect of export subsidies under that Agreement.

On 28 October 1999, the United States notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), and filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures for Appellate Review (the “Working Procedures”).