- 14 -
the time span element is also present in Example (3) where the
section 38 assets are transferred in a different taxable year and
the recapture of the investment tax credit is mandated. The
contrast between these two examples highlights the fact that it
is what is transferred and not when the transfer occurs that is
significant. Indeed, if timing was a significant element in
Example (5), one would think that respondent would have referred
to Example (5) and this element in Rev. Rul. 82-20, supra, and
thus provided the tax-paying public with notice of respondent's
restrictive interpretation of Example (5) rather than leaving
such interpretation to unarticulated alleged inference. We do
not think the "assumption" referred to in the ruling, see supra
p. 9, constitutes a meaningful signal to this effect.
In the foregoing context, the conflict between Rev. Rul. 82-
20, supra, and Example (5) becomes apparent. The question then
becomes what, if any, weight we should give to Rev. Rul. 82-20,
supra. We think the Courts of Appeals for the Second and Ninth
Circuits accorded the ruling undue weight and that revenue
rulings play a lesser role than the language of the opinions of
those Courts of Appeals seems to indicate. We see no purpose to
be served in engaging in a detailed discussion of the differences
in judicial articulation which can be found in this arena. We
note, however, that the Court of Appeals for the Sixth Circuit,
to which an appeal herein will lie, has stated:
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