Decision · Canada · Federal Circuit
Estate of Bruyea v. United States: the Canada treaty and the NIIT
U.S. Court of Appeals for the Federal Circuit, No. 25-1563, decided August 31, 2026. A US citizen in Canada sold Canadian real estate, paid Canada, and claimed Article XXIV against the 3.8%. The trial court agreed; the Federal Circuit reversed. What it held, who it reaches, what it left alone.
By Danilson Ramos · Founder, Atamatax
Published June 2026 · Updated September 2026
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Paul Bruyea, a US citizen living in Canada, sold real estate he owned there in 2015. He paid Canadian tax on the gain and owed the United States net investment income tax on the same gain. Relying on Article XXIV of the 1980 Convention — "Elimination of Double Taxation" — he claimed a foreign tax credit against the NIIT. The IRS refused; the Court of Federal Claims, in December 2024, held that Article XXIV provided a credit that could be taken against the NIIT notwithstanding the Code; the government appealed.
What the court held
The Federal Circuit reversed on two independent propositions, "each grounded in unambiguous text".
First, the Code. Sections 27 and 901(a) allow the credit against "the tax imposed by this chapter" — chapter 1 — and §901(a) withholds it from taxes treated as not imposed by that chapter. The NIIT is in chapter 2A. The estate itself agreed "the Code does not provide the foreign tax credit he seeks to apply against the NIIT"; the court determined the same.
Second, the Convention. Article XXIV(1) allows the credit "in accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle hereof)". The court held that this U.S. Law Limitation makes the treaty credit subject to §§27 and 901(a) — the very provisions that foreclose a credit against the NIIT. The estate's arguments that the treaty's breadth (the NIIT is a covered "United States tax"), its General Principle Clause (amendments may not change the principle of avoiding double taxation), or the Treasury's Technical Explanation displaced that limitation were each rejected: coverage "is the start of the analysis, not its conclusion"; the Convention's ambition is that double taxation "shall be avoided", not eliminated absolutely, and Congress's decision not to make one new tax creditable does not change the general principle; and the Technical Explanation is extrinsic and does not say what the estate needed it to.
- Re-sourcing shows the credit lives inside the Code. Article XXIV's re-sourcing rules exist to get past §904(a)'s source limit for certain items; they would be pointless if the treaty credit operated independently of §904.
- Paragraph 4(b). The estate's alternative argument — that the citizen-resident credit clause in Article XXIV(4)(b) is free of the limitation because it does not repeat the words — was rejected "for the same reasons given in Christensen": the limitation is an overarching qualifier read across the article.
- Every other court agrees. The court noted Christensen (Fed. Cl., on Article 24(2)(a)), Kim (C.D. Cal., Korea) and Toulouse (Tax Court, France and Italy), and observed that "the only court to take a different view is the Court of Federal Claims in this case".
Who is affected
A US citizen resident in Canada with MAGI over $200,000, $250,000 or $125,000 (by filing status) and net investment income on which Canadian tax was paid — a rental property or a cottage sold, a non-registered account's dividends and gains, interest on GICs, a principal residence sold for more than the §121 exclusion. The Canadian tax credits against the regular US tax on Form 1116, often completely; it does not credit against the 3.8%.
The facts were real property, and Canada's principal-residence exemption makes a home sale the most common way an American in Canada meets this rule: no Canadian tax on the gain means no Form 1116 credit even against the regular tax, and the excess over the §121 exclusion is net investment income in full.
What did not change
| Unchanged | Why |
|---|---|
| Form 1116 credit against regular tax | Canadian income tax on the same income still credits against chapter 1 tax within §904 |
| Article XXIV re-sourcing | Still applies, for that credit — the court relied on it |
| RRSP / RRIF deferral (Article XVIII(7), Rev. Proc. 2014-55) | A different article; not before the court |
| CPP / OAS treatment (Article XVIII(5)) | A different article; not before the court |
| Form 8960 line 9b deduction | Itemised Canadian income tax allocable to investment income may still reduce the base |
Two scenarios
A cottage sold. Married filing jointly, resident in Ontario, $300,000 gain on a second property, Canadian tax paid on half the gain at the marginal rate. MAGI over $250,000 by $120,000; NIIT 3.8% of $120,000 = $4,560. Form 1116 credits the Canadian tax against the regular US tax on the gain; nothing credits against the $4,560.
A principal residence sold. Single, resident in Vancouver, $700,000 gain, no Canadian tax (principal-residence exemption). §121 excludes $250,000; $450,000 is taxable gain and net investment income; with other income already at the threshold, NIIT is $17,100 — and there is no Canadian tax to credit against anything.
What to review
- Returns for open years that claimed a treaty-based credit against Form 8960 on Canadian-taxed income: discuss an amended return with the preparer, and the interest exposure.
- Protective refund claims filed while the appeal was pending.
- The Form 1116 computation for those years — the credit against regular tax should be intact, with re-sourcing applied where Article XXIV provides for it.
- For a home sold, whether the §121 exclusion and any §988 gain on a Canadian-dollar mortgage were handled; for a rental, whether depreciation recapture was included in the gain.
Reviewed against the opinions on 2026-09-15. Rehearing and certiorari windows are open as of 2026-09-15 (rehearing petition due within 45 days of the August 31, 2026 judgment; certiorari within 90 days of judgment or of a rehearing denial). No petition had been docketed when this record was last checked. The docket is re-checked by 2026-10-16; if the status changes, this page changes with it.
This page explains a court decision; it is not legal advice. Atamatax computes the NIIT and the Form 1116 credit separately, never applies one to the other, and cites this decision in the record it produces for Canada.
Where does this leave you?
The free check reads your bands against the threshold and — for Canada — names this decision on the credit-boundary line.
Authorities cited
- Estate of Bruyea v. United States (Fed. Cir. 2026) — Estate of Paul Bruyea v. United States, No. 25-1563 (Fed. Cir. Aug. 31, 2026) (precedential) — the U.S.–Canada treaty's Article XXIV(1) and XXIV(4)(b) credits are subject to the U.S. Law Limitation; the Code and Convention unambiguously preclude offsetting the NIIT by a foreign tax credit; reversing 174 Fed. Cl. 238 (2024)
- Christensen v. United States (Fed. Cir. 2026) — Christensen v. United States, No. 24-1284 (Fed. Cir. Aug. 31, 2026) (precedential) — the U.S.–France treaty's Article 24(2)(a) and 24(2)(b) credits are subject to the Code's §§27/901(a) limitation and do not offset the §1411 net investment income tax; reversing 168 Fed. Cl. 263 (2023)
- US–Canada Income Tax Treaty — Convention between the United States and Canada (signed 1980), as amended by its five Protocols
- IRC §1411 — IRC §1411 — Net Investment Income Tax (3.8%)
- IRC §27 — IRC §27 — Taxes of foreign countries and possessions: credit allowed against the tax imposed by chapter 1 to the extent provided in §901
- IRC §901 — IRC §901 — Taxes of foreign countries and U.S. possessions
- IRC §26(b) — IRC §26 — Limitation based on tax liability; §26(b) lists the taxes not treated as imposed by chapter 1
- IRC §904 — IRC §904 — Limitation on the foreign tax credit
- IRC §121 — IRC §121 — Exclusion of gain from sale of principal residence ($250,000 / $500,000)
- IRS Form 8960 — About Form 8960 — Net Investment Income Tax (Individuals, Estates, and Trusts)
- IRS Form 1116 — About Form 1116 — Foreign Tax Credit (Individual, Estate, or Trust)
- Toulouse v. Commissioner, 157 T.C. 49 (2021) — Toulouse v. Commissioner, 157 T.C. 49 (2021) — "There is no Code provision for a foreign tax credit against the net investment income tax"; Article 24(2)(a) of the U.S.–France treaty and Article 23(2)(a) of the U.S.–Italy treaty do not provide an independent basis for one (Tax Court, reviewed opinion)
- Kim v. United States (C.D. Cal. 2023) — Kim v. United States, 664 F. Supp. 3d 1062 (C.D. Cal. 2023) — foreign tax credits may only offset taxes imposed by chapter 1; the NIIT does not qualify for the credit under the U.S.–South Korea treaty
- Rev. Proc. 2014-55 — Rev. Proc. 2014-55 — automatic tax deferral for Canadian RRSPs and RRIFs; eliminates the Form 8891 election
Primary sources (Cornell Legal Information Institute for the US Code and CFR; IRS.gov for forms, procedures, and treaty documents). This page is general information, not individualized tax or legal advice.
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