- 52 -                                         
          HALPERN, J., dissenting:                                                    
          I.  Introduction                                                            
               Section 163(h)(2)(A) exempts from the category of personal             
          interest (which is nondeductible for individuals):  "interest               
          paid or accrued on indebtedness properly allocable to a trade or            
          business (other than the trade or business of performing services           
          as an employee)".                                                           
               The majority finds that a reasonable interpretation of that            
          exemption includes the interest here in question.  The majority             
          holds that, if the tracing rules of section 1.163-8T, Temporary             
          Income Tax Regs., require a contrary conclusion, then, to that              
          extent, the tracing rules are invalid.  If the tracing rules of             
          section 1.163-8T, Temporary Income Tax Regs., 52 Fed. Reg. 24999            
          (July 2, 1987), do not require a contrary conclusion, but the               
          specific rule of section 1.163-9T(b)(2)(i)(A), Temporary Income             
          Tax Regs., 52 Fed. Reg. 48409 (Dec 22, 1987), does, then the                
          majority holds that that specific rule is invalid.                          
               In so holding, the majority departs from the Supreme Court's           
          teachings in Chevron, U.S.A., Inc. v. Natural Resources Defense             
          Council, Inc., 467 U.S. 837, 842-844 (1984), and NationsBank v.             
          Variable Annuity Life Ins. Co., 513 U.S. ___, 115 S. Ct. 810,               
          813-814 (1995).  I believe that application of those decisions              
          leads to the conclusion that the temporary regulations at issue             
          are valid, which leads to a decision for respondent.                        
          II.  In the Absence of Regulations                                          
               I agree that, in the absence of temporary regulations, a               
Page:  Previous   42   43   44   45   46   47   48   49   50   51   52   53   54   55   56   57   58   59   60   61   NextLast modified: May 25, 2011