- 23 -
See Estate of Wallace v. Commissioner, 965 F.2d 1038, 1050-1051
n.15 (11th Cir. 1992), affg. 95 T.C. 525 (1990); Zinniel v.
Commissioner, 89 T.C. 357, 367 (1987), affd. 883 F.2d 1350 (7th
Cir. 1989);8 see also Livingston, supra at 93 ("The Blue Book is
on especially weak ground when it adopts anti-taxpayer positions
not taken in the committee reports."). Given the clear thrust of
the conference committee report, the General Explanation is
without foundation and must fall by the wayside. To conclude
otherwise would elevate it to a status and accord it a deference
to which it is simply not entitled.
Respondent further argues that Congress has failed to
express dissatisfaction with the regulation in subsequent
legislative actions in 1988 and 1990. According to National
Muffler Dealers Association v. United States, 440 U.S. 472, 477
(1979), this is one element to consider in determining the
reasonableness of a regulation. However, we do not believe the
legislative action discussed by respondent is the type
contemplated by the Supreme Court. The first action is the
enactment of the amendment to section 163(h)(2)(A) on
November 10, 1988, which was less than a year after the issuance
of the regulation on December 22, 1987, and which, as we have
(...continued)
1986, during the 99th Congress, whereas the General Explanation
was published on May 4, 1987, during the 100th Congress. Thus,
the General Explanation is not even entitled to the respect it
might otherwise be accorded if it had been prepared for the
Congress which enacted sec. 163(h).
See also Lawson v. Commissioner, T.C. Memo. 1994-286, at n.8.
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