Square D Company and Subsidiaries - Page 16




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          and cigarettes might appear to fall within the statutory                    
          definitions of “drug” and “combination product” when such                   
          definitions were considered in isolation, consideration of the              
          statute as a whole and in the context of other enactments                   
          revealed items that conflicted with any grant of jurisdiction in            
          the Act to the FDA to regulate tobacco.                                     
               In view of the refinements of the Chevron doctrine in Brown            
          & Williamson, we believe our opinion in Tate & Lyle I may have              
          given insufficient attention to fitting all parts of section                
          267(a) into “an harmonious whole”.  If, as we held in Tate & Lyle           
          I, section 267(a)(3) authorizes only regulations that address               
          mismatches resulting from the payee’s method of accounting, then            
          it would appear that section 267(a)(3) is redundant in relation             
          to section 267(a)(2), as the Court of Appeals for the Third                 
          Circuit reasoned.  That is because section 267(a)(2) would                  
          already reach, and implicitly authorize regulations covering,               
          payments owed to a related foreign person with a (U.S.) method of           
          accounting for such payments.  Moreover, as in Brown &                      
          Williamson, there was a time gap between the enactment of section           
          267(a)(2) and (a)(3), the latter provision being enacted some 2             
          years after the former.5  The subsequent enactment of 267(a)(3)             

               5 Sec. 267(a)(2) was amended in 1984 to the form in effect             
          in the years in issue.  Deficit Reduction Act of 1984, Pub. L.              
          98-369, sec. 174(a), 98 Stat. 704.  Sec. 267(a)(3) was added to             
          the Code in 1986.  Tax Reform Act of 1986, Pub. L. 99-514, sec.             
                                                             (continued...)           





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