Second AI version: Foreign Tax Credits vs. the NIIT: What the Bruyea and Christensen Appeals Could Change

A second and different AI generated podcast about the Bruyea/Christensen NIIT appeals ... based on a conversation between:

John Richardson - @Expatriationlaw

Tim Smyth - @TpSymth01

On March 3, 2026, the Federal Circuit heard back-to-back appeals (Bruyea — Canada and Christensen — France) over whether foreign taxes paid by Americans abroad can be credited against the 3.8% Net Investment Income Tax (NIIT). The core fight is over treaty language that allows credits “in accordance with the provisions and subject to the limitations of the law of the United States,” and whether that permits the U.S. to deny a treaty-based credit for the NIIT.

At trial the courts split: Bruyea treated the treaty phrase as governing computation (not authorization), while Christensen won on a different treaty provision. The appellate panel pressed on whether the NIIT is an “income tax,” the practical absurdity of allowing treaty language to produce double taxation, and the government’s suggestion that treaty renegotiation is the remedy.

The stakes are high for Americans investing abroad: a taxpayer win could block double taxation and restore treaty relief for the NIIT, while a government win could let domestic statutory structure limit treaty protections. We now wait for the Federal Circuit’s decision and the practical fallout for refund suits and treaty enforcement.