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position is entitled to less deference because she has changed
her position.2 See Priv. Ltr. Rul. 86-31-005 (Apr. 23, 1986).
The courts have been inconsistent on this point. See, e.g., Bell
Fed. Sav. & Loan Association v. Commissioner, 40 F.3d 224, 229
(7th Cir. 1994) (citing National Muffler Dealers Association v.
United States, 440 U.S. 472 (1979)), for an expression of the
contrary view.3
Where I come out on all this is that the policy underlying
the QTIP rules supports petitioner's position in the case at
hand, there are reasonable interpretations of section
2056(b)(7)(B)(i) and (ii) that support petitioner's position, and
the QTIP rules deserve a liberal interpretation that will uphold
that position. We properly leave to another day whether to
uphold the Commissioner's regulation to the contrary, section
20.2056(b)-7(d)(3), Estate Tax Regs. When we face that
question, we should find it a much closer question under Chevron
2The use of private letter rulings in this fashion erodes the
statutory prohibition of sec. 6110(j)(3) on the use or citation
of private rulings as precedent. I'm concerned that such use
will have a stultifying effect on the private rulings process.
3The infrequency with which the Supreme Court has cited INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987), in recent years, especially
for the changed-position doctrine, where the Court seems more
likely to disregard it, see Stutson v. United States, U.S.
, 116 S. Ct. 600 (1996); Lawrence v. Chater, U.S. , 116
S. Ct. 604 (1996); cf. Thomas Jefferson Univ. v. Shalala, 512
U.S. , , 114 S. Ct. 2381, 2388 (1994); Good Samaritan Hosp.
v. Shalala, 508 U.S. 402, (1993), 113 S. Ct. 2151, 2161
(1993), would seem to indicate that Cardoza-Fonseca is moribund,
except, perhaps, in the immigration area that gave birth to it,
see Franklin v. INS, 72 F.3d 571 (8th Cir. 1995); Zhang v.
Slattery, 55 F.3d 732 (2d Cir. 1995).
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