- 15 -
in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute. [Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-843 (1984); fn. refs. omitted.]
See also NationsBank v. Variable Annuity Life Ins. Co., 513 U.S.
___, 115 S. Ct. 810, 813 (1995); Pension Benefit Guar. Corp. v.
LTV Corp., 496 U.S. 633, 647-648 (1990). The Supreme Court
further has stated that a reviewing court
need not conclude that the agency construction was the only
one it permissibly could have adopted to uphold the
construction, or even the reading the court would have
reached if the question initially had arisen in a judicial
proceeding. * * * [Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., supra at 843 n.11.]
Accordingly, "If the administrator's reading fills a gap or
defines a term in a way that is reasonable in light of the
legislature's revealed design, we give the administrator's
judgment 'controlling weight.'" NationsBank v. Variable Annuity
Life Ins Co., 513 U.S. at ___, 115 S. Ct. at 813-814. Despite
the fact that the Chevron rule "has had a checkered career in the
tax arena", Central Pa. Sav. Association v. Commissioner, 104
T.C. 387, 391-392 (1995), the Court of Appeals for the Sixth
Circuit, to which an appeal of the instant case would lie absent
stipulation of the parties to the contrary, has stated that where
"Congress has not directly spoken to the precise question at
issue, the [Chevron] rule * * * should be applied". Peoples Fed.
Sav. & Loan Association v. Commissioner, 948 F.2d 289, 299 (6th
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