- 16 -
Participants attempt to place these cases within the realm
of those decisions in which courts have invalidated Treasury
regulations. Although it is well settled that respondent "may
not usurp the authority of Congress by adding restrictions to a
statute which are not there", Estate of Boeshore v. Commissioner,
78 T.C. 523, 527 (1982), participants' reliance on this line of
authority is misplaced. In each of the cases cited by the
participants, a regulation was invalidated either because it
directly conflicted with an unambiguous statutory provision or
because it was inimical to the clear congressional mandate set
forth in the pertinent legislative history.15 As previously
15
See, e.g., United States v. Vogel Fertilizer Co., 455
U.S. 16, 26 (1982) ("The legislative history of sec. 1563(a)(2)
resolves any ambiguity in the statutory language and makes it
plain that Treas. Reg. sec. 1.1563-1(a)(3) is not a reasonable
statutory interpretation."); Koshland v. Helvering, 298 U.S. 441,
447 (1936) ("where, as in this case, the provisions of the act
are unambiguous, and its directions specific, there is no power
to amend it by regulation"); Jackson Family Foundation v.
Commissioner, 97 T.C. 534, 542 (1991), affd. 15 F.3d 917 (9th
Cir. 1994) ("there is simply no statutory basis for the
regulation"); (holding that sec. 1.863-1(b), Income Tax Regs.,
contradicts the clear and unambiguous language of sec.
863(b)(2)); Phillips Petroleum Co. v. Commissioner, 97 T.C. 30,
34-36 (1991), affd. without published opinion 70 F.3d 1282 (10th
Cir. 1995); Durbin Paper Stock Co. v. Commissioner, 80 T.C. 252,
260 (1983) ("we find section 992(a)(1)(C) to be unambiguous. In
our view, there is no statutory authority for the 'paid-in'
capital requirement set forth in section 1.992-1(d)(1), Income
Tax Regs."); Estate of Boeshore v. Commissioner, 78 T.C. 523,
531-532 (1982) ("the regulation adds restrictions to the statute
that are not there, and the regulation is out of 'harmony' with
the statute's origin and purpose"); ("respondent's interpretation
of section 103(c)(2)(A) is at odds with the legislative history
and the totality of the circumstances surrounding the enactment
(continued...)
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