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Sixth Circuit denies en banc rehearing of Whirlpool

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Tax Hot Topics newsletter 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.

Contact:
David Sites
Partner
Washington National Tax Office
T +1 202 861 4104

Cory Perry
Senior Manager
Washington National Tax Office
T +1 202 521 1509

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