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We do not accept either party’s argument that we can
determine whether WFNNB is in the banking business simply by
determining whether WFNNB is a bank. The question is not whether
WFNNB is a bank. Congress did not provide an exception for
deposits with “banks”; it provided an exception for “deposits
with persons carrying on the banking business”. Congress did not
define the term “banking business”, and, although petitioner
presented expert testimony with respect to banks and banking,
none of petitioner’s experts claim that the term “banking
business” is a term of art or has a well-defined meaning.
Indeed, petitioner’s expert, Robert L. Clarke, Comptroller of the
Currency from December 1985 through February 1992, testified:
“During the time I served as Comptroller of the Currency, the
issues of what it means to be a ‘bank’ and exactly what
constitutes the ‘banking business’ regularly confronted the
Office of the Comptroller of the Currency [OCC], Congress and the
court system, including the Supreme Court.” We conclude that the
term “deposits with persons carrying on the banking business” is
ambiguous.8 Cf. NationsBank, N.A. v. Variable Annuity Life Ins.
8 The parties dispute not only the meaning of the term
“deposits with persons carrying on the banking business” but also
the meanings of the subordinate terms “deposits” and “banking
business”. We conclude that the subordinate term “banking
business” is ambiguous. That is sufficient for us to conclude
that the superior term, “deposits with persons carrying on the
banking business”, is ambiguous.
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