Alumax Inc. and Consolidated Subsidiaries - Page 103

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               promulgate regulations that create agency relationships                
               between corporations that never were part of the affil-                
               iated group, yet this is precisely what the Secretary                  
               purports to have done in Treas. Reg. section 1.1502-                   
               77(c)(2).  The regulation thus is inconsistent with the                
               "plain language of the statute" and cannot be valid.                   
               Section 1.1502-77(c)(2), Income Tax Regs., is a legislative            
          regulation that was promulgated under section 150233 and that               
          appears in the portion of the regulations under that section                
          entitled "Administrative Provisions and Other Rules".  As a                 
          legislative regulation, section 1.1502-77(c)(2), Income Tax                 
          Regs., must be upheld unless it is arbitrary, capricious, or                
          manifestly contrary to section 1502.  Chevron U.S.A., Inc. v.               
          Natural Resources Defense Council Inc., 467 U.S. 837, 844 (1984).           
               Regulations substantially the same as section 1.1502-                  
          77(c)(2), Income Tax Regs., were first issued as article 17(a)(2)           
          of Regulations 7534 under the authority of section 141(b) of the            

          33  Section 1502 provides:                                                  
                  The Secretary shall prescribe such regulations as he                
             may deem necessary in order that the tax liability of any                
             affiliated group of corporations making a consolidated                   
             return and of each corporation in the group, both during                 
             and after the period of affiliation, may be returned,                    
             determined, computed, assessed, collected, and adjusted,                 
             in such manner as clearly to reflect the income tax lia-                 
             bility and the various factors necessary for the determi-                
             nation of such liability, and in order to prevent avoid-                 
             ance of such tax liability.                                              
          34  Art. 17(a)(2) of Regulations 75 provided:                               
            (a) Effect of Waiver given by Parent.                                     
            Any consent given by the parent corporation * * *                         
            extending the time within which an assessment may be made                 
                                                             (continued...)           



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