- 35 -
than the Court of Appeals for the Fifth Circuit's opinion in
Clayton might lead one to believe.4
4The Courts of Appeals--for the Fifth Circuit in Estate of
Clayton, supra (before the release of the final regulation) and
the Eighth Circuit in Estate of Robertson, 15 F.3d 779 (8th Cir.
1994), revg. 98 T.C. 678 (1992) (after its release)--found the
Commissioner's position to be in violation of the plain language
of the statute. Acceptance of this view would derail the inquiry
in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), from getting to the second step that
requires deference to the Commissioner's view. It's at this
point that I part company from the position stated so
categorically by the Court of Appeals for the Fifth Circuit. The
contrariety of judicial views on this subject shows that
reasonable people can disagree over what the appropriate result
should be and whether it turns on the interpretation to be given
to one or the other prong of sec. 2056(b)(7)(i) and (ii) or on
the policy argument.
Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 NextLast modified: May 25, 2011