Hachette USA, Inc., As Successor to Hachette Publications, Inc. and Curtis Circulation Co., Subsidiary - Page 26

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          Secretary's Authority To Resolve Cost Issues                                
               This Court and others have struck down regulations that did            
          not harmonize with the language, origin, and purpose of the                 
          statute which they purported to interpret.  United States v.                
          Vogel Fertilizer Co., 455 U.S. 16, 24-25 (1982); Western Natl.              
          Mut. Ins. Co. v. Commissioner, 102 T.C. 338 (1994); Hughes Intl.            
          Sales Corp. v. Commissioner, 100 T.C. 293 (1993); Jackson Family            
          Found. v. Commissioner, 97 T.C. 534 (1991), affd. 15 F.3d 917               
          (9th Cir. 1994); Durbin Paper Stock Co. v. Commissioner, 80 T.C.            
          252 (1983).  Petitioners have attempted to cast these cases in              
          the mold of those decisions.  Thus, petitioners argue that the              
          Regulation represents an impermissible attempt to amend rather              
          than merely interpret the statute, quoting language from our                


               3(...continued)                                                        
          the tax return for the year to which the election applies.  From            
          the context it is quite clear that Congress did not intend this             
          provision as a substantive limitation on the Secretary's                    
          rule-making authority.                                                      
               It is likely that Congress added this provision out of a               
          consideration for administrative efficiency.  Sec. 458(c)(4)                
          provides that computation of taxable income under an election               
          shall be treated as a method of accounting.  The election would             
          therefore constitute a change in method of accounting, which                
          ordinarily would require the taxpayer to follow procedures for              
          obtaining the Secretary's consent.  Sec. 446(e).  Congress                  
          anticipated a large number of similarly situated taxpayers would            
          make the election and did not believe that review of each                   
          applicant's particular circumstances would be necessary.                    
          Petitioners' reading would imply that the Secretary could not               
          disallow use of the method of accounting under sec. 458 even if             
          the taxpayer was using it in a manner that conflicted with other            
          provisions of the Code and regulations.  There is no evidence               
          that Congress intended sec. 458 to supersede all other tax law.             




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