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less than 2-year preproductive period. In essence, petitioner’s
argument is that the section 263A(e)(3)(B) nationwide weighted
average requirement has no effect unless respondent issues a
regulation or guidance providing the average. Petitioner, in the
alternative, argues that any adjustment that is sourced in the
corporation’s 1991 tax year is time barred. The first question
we consider is whether the absence of guidance and/or regulations
changes the statutory requirements.5
Petitioner’s argument assumes that the only possible source
for a nationwide weighted average is the Commissioner or the
Secretary. Although the statute requires that regulations be
prescribed as may be necessary or appropriate, the statute does
not specifically mandate that the Secretary calculate the
national averages for various plants. The statute does require
that the period in question be measured based on the nationwide
weighted average.6 Accordingly, if taxpayers were able to show
5 Generally, where regulations have been necessary to
implement a statutory scheme providing favorable taxpayer rules,
this Court has found that the statute’s effectiveness is not
conditioned upon the issuance of regulations. See Estate of
Maddox v. Commissioner, 93 T.C. 228, 233-234 (1989); First
Chicago Corp. v. Commissioner, 88 T.C. 663, 676-677 (1987), affd.
842 F.2d 180 (7th Cir. 1988); Occidental Petroleum Corp. v.
Commissioner, 82 T.C. 819, 829 (1984). We have held that the
U.S. Department of the Treasury’s failure to provide the needed
guidance should not deprive taxpayers of the benefit or relief
Congress intended. See Hillman v. Commissioner, 114 T.C. 103,
___ (2000) (slip op. at 14).
6 Congress expected the Secretary periodically to publish
(continued...)
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