Harbor Bancorp & Subsidiaries - Page 65

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               JACOBS, J., dissenting:  The majority opinion is premised on           
          the notion that section 148(f) is unambiguous, thus preventing us           
          from looking beyond the words of the statute.  In my opinion, the           
          majority's mechanical interpretation of section 148(f), when                
          applied to the unusual facts of this case,1 leads to a result that          
          does not comport with the rationale behind the promulgation of the          
          arbitrage provisions.  See Birdwell v. Skeen, 983 F.2d 1332, 1337           
          (5th Cir. 1993); Wilshire Westwood Associates  v. Atlantic                  
          Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989).  Accordingly,           
          I believe that we should resort to the legislative history for aid          
          in applying section 148(f) to the facts of this case.  By doing so,         
          I conclude, as petitioners do, that Congress did not intend to make         
          the issuers of tax-exempt bonds (here, the Housing Authority of             
          Riverside County, California) the insurers for wrongful actions of          
          those who misuse the bond proceeds to earn arbitrage profits for            
          themselves.  Accordingly, I would hold that the Bonds issued by the         
          Housing Authority are not arbitrage bonds.  I would further hold            
          that the Bonds are nontaxable industrial development bonds.2                

               1    Statutory text should not be read in an atmosphere of             
          sterility, but rather in the context of the specific facts and              
          circumstances of each case.  See 2A Singer, Sutherland Statutory            
          Construction, sec. 45.12, at 61 (5th ed. 1992).  "The use of                
          literalism suggests that a judge puts on blinders, so to speak,             
          obscuring from view everything but the text of the statute whose            
          effect on the matter at issue is in question."  Id. sec. 46.02,             
          at 92.                                                                      
               2    Admittedly, the Bonds were industrial development bonds           
          under sec. 103(b)(2). However, the Bonds come within the                    
          exception provided by sec. 103(b)(4)(A).  That section provides             
          that the interest on the obligations is not taxable as long as              
                                                             (continued...)           



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