- 31 - Section 7805(b) “sets out a blanket rule which specifically permits the Commissioner to prescribe prospective effect to regulations which would otherwise have retroactive application.” Wendland v. Commissioner, 79 T.C. 355, 381-382 (1982), affd. 739 F.2d 580 (11th Cir. 1984), also affd. sub nom. Redhouse v. Commissioner, 728 F.2d 1249 (9th Cir. 1984). Under section 7805(b), there is a presumption that every regulation will operate retroactively, unless the Secretary specifies otherwise. See Manocchio v. Commissioner, 710 F.2d 1400, 1403 (9th Cir. 1983), affg. 78 T.C. 989 (1982); Butka v. Commissioner, 91 T.C. 110, 129 (1988), affd. 886 F.2d 442 (D.C. Cir. 1989). In the instant case, the Secretary did specify otherwise and, in doing so, clearly acted within his authority. See Butka v. Commissioner, supra at 129 (“Section 7805(b) certainly gives [the Secretary] authority to provide, if he so chooses, that the new regulation will operate only prospectively”). Petitioner argues that respondent’s exercise of his authority to issue prospective regulations, being discretionary, is reviewable for abuse of discretion. Petitioner states on brief: Petitioner submits that when retroactive application of a regulation would not have inequitable results, Respondent does not have the authority to limit retroactivity. Congress only gave Respondent the discretion to prevent retroactivity to the extent required in order to avoid undue hardship or discrimination.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011