Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 34

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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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