- 58 -
First, always, is the question whether Congress has
directly spoken to the precise question at issue. If
the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of
Congress.9
9 The judiciary is the final authority on issues of
statutory construction and must reject administrative
constructions which are contrary to clear congressional
intent. If a court, employing traditional tools of
statutory construction, ascertains that Congress had an
intention on the precise question at issue, that
intention is the law and must be given effect.
Id. at 842-843 (citations omitted; emphasis added). Second, if
section 83(h) is ambiguous, then we must address: “[W]hether the
agency’s answer is based on a permissible [reasonable]
construction of the statute.” Id. at 837-838. If section 83(h)
is not ambiguous, and carries the must-be-reported meaning
ascribed to it by the majority, then the general rule is
necessarily invalid because it conditions a deduction only on
includability (as a matter of law), and not on reporting. The
majority has not considered that consequence in reaching its
conclusion about the (lack of) ambiguity in section 83(h).
Indeed, the majority has failed to consider whether the general
rule even suggests any ambiguity in section 83(h). Perhaps that
is because, for the majority, there is no middle ground. If the
majority were to conclude that section 83(h) is ambiguous,
Chevron U.S.A., Inc. would require the Court to determine if the
regulations contain a permissible (reasonable) construction of
the statute. Because the general rule is such a construction,
Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 NextLast modified: May 25, 2011