Square D Company and Subsidiaries - Page 14




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               Thus, in the first step of a Chevron analysis we must                  
          ascertain whether the statute is clear and unambiguous, and in              
          the second step we consider whether, given ambiguities in the               
          statute, the regulation is based on a permissible construction of           
          the statute.  The agency’s choice among permissible constructions           
          is entitled to deference.  Holly Farms Corp. v. NLRB, 517 U.S.              
          392, 398-399 (1996).  Indeed, where as here the regulation is               
          legislative in character, it must be upheld unless “arbitrary,              
          capricious, or manifestly contrary to the statute”.  Chevron                
          U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra at 844;              
          N.Y. Football Giants, Inc. v. Commissioner, 117 T.C. 152, 156               
          (2001); Peterson Marital Trust v. Commissioner, 102 T.C. 790,               
          797-798 (1994), affd. 78 F.3d 795 (2d Cir. 1996).                           
               5. Analysis                                                            
               a. Chevron, First Step                                                 
               In Tate & Lyle I, we concluded that the statutory language             
          of section 267(a)(3) is clear; namely, that it authorizes                   
          regulations to limit deductions only where a mismatch of a                  
          deduction and corresponding income inclusion results from the               
          payee’s method of accounting because, we reasoned, “the matching            
          principle of paragraph (2)” covers only mismatches attributable             
          to that cause.                                                              
               The Supreme Court recently provided additional guidance for            
          administering the first step of the Chevron test in FDA v. Brown            






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