- 13 - a number of commentators had urged the Secretary to omit the cost of goods sold adjustment. The provision was retained, the preamble explains, because the language of section 458(a) indicates that the exclusion is determined on the basis of gross income, which for a seller of merchandise is defined in section 1.61-3(a), Income Tax Regs., as sales revenue less cost of goods sold, and because, in the Secretary's opinion, the cost of goods sold adjustment is necessary to clearly reflect income in accordance with section 446(b). 57 Fed. Reg. 38595. Discussion Congressional Intent With Respect to Cost Issues We must decide whether the correlative cost of goods sold adjustment required by the Regulation contravenes the statute. "Under the test articulated in Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984), the first question a court must ask when reviewing an agency's construction of a statute is whether Congress has directly spoken to the precise question at issue and has expressed a clear intent as to its resolution." Western Natl. Mut. Ins. Co. v. Commissioner, 102 T.C. 338, 359 (1994), affd. F.3d (8th Cir., Sept. 1, 1995); NationsBank v. Variable Annuity Life Ins. Co., 513 U.S. , , 115 S. Ct. 810, 813-814 (1995). Petitioners contend that Congress has directly spoken to the precise question at issue in these cases. Petitioners' main argument runs as follows. Section 458(a) provides for anPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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