James E. Redlark and Cheryl L. Redlark - Page 23

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          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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