Sixth Circuit denies en banc rehearing of Whirlpool


The Sixth Circuit recently denied Whirlpool’s petition for an en banc rehearing in its case Whirlpool Financial Corp. v. Commissioner.

In December 2021, the Sixth Circuit issued its opinion in the case (No. 20-1900), affirming the U.S. Tax Court’s opinion (154 T.C. No. 9) that granted summary judgment for the government—finding that income generated by a controlled foreign corporation of Whirlpool as part of a foreign manufacturing and sales structure was foreign base company sales income under Section 954(d). The Sixth Circuit also held that the Subpart F branch rules applied in the case. For more information on the Sixth Circuit’s decision, see our prior story, “Sixth Circuit rejects Whirlpool appeal.”

Following its loss before the Sixth Circuit panel, Whirlpool petitioned for an en banc rehearing (a request for the entire Sixth Circuit to rehear Whirlpool’s case rather than just a panel of judges). Several special interest groups also petitioned the court as amicus in support of Whirlpool’s motion for an en banc rehearing. However, en banc review is rarely granted—and on March 2, 2022, Whirlpool’s motion was denied, with the sole dissenting judge from the original Sixth Circuit panel’s opinion favoring a rehearing for the reasons stated in his dissent. Whirlpool could appeal the ruling to the Supreme Court.



Cory Perry

Washington DC, Washington DC

  • Manufacturing
  • Technology and telecommunications
  • Private equity
Service Experience
  • Tax
Tax professional standards statement

This content supports Grant Thornton LLP’s marketing of professional services and is not written tax advice directed at the particular facts and circumstances of any person. If you are interested in the topics presented herein, we encourage you to contact us or an independent tax professional to discuss their potential application to your particular situation. Nothing herein shall be construed as imposing a limitation on any person from disclosing the tax treatment or tax structure of any matter addressed herein. To the extent this content may be considered to contain written tax advice, any written advice contained in, forwarded with or attached to this content is not intended by Grant Thornton LLP to be used, and cannot be used, by any person for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code.

The information contained herein is general in nature and is based on authorities that are subject to change. It is not, and should not be construed as, accounting, legal or tax advice provided by Grant Thornton LLP to the reader. This material may not be applicable to, or suitable for, the reader’s specific circumstances or needs and may require consideration of tax and nontax factors not described herein. Contact Grant Thornton LLP or other tax professionals prior to taking any action based upon this information. Changes in tax laws or other factors could affect, on a prospective or retroactive basis, the information contained herein; Grant Thornton LLP assumes no obligation to inform the reader of any such changes. All references to “Section,” “Sec.,” or “§” refer to the Internal Revenue Code of 1986, as amended.


More tax hot topics