Thomas P. and Ermina A. Krukowski - Page 41




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               For example, another canon of construction, applied in                   
          Smietanka v. First Trust & Sav. Bank, 257 U.S. 602, 607 (1922),               
          on the effect of material added on reenactment, not material                  
          omitted, cuts against the majority’s argument.  In First Trust &              
          Sav. Bank, the Supreme Court treated the addition of an express               
          rule, by a later enactment, as proof the rule was not included in             
          the analogous provisions of an earlier statute.                               
               The 1994 final regulations expressly state that a                        
          shareholder’s activities include those conducted through C                    
          corporations subject to section 469.  The silent 1992 proposed                
          regulations contained no such participation/attribution rule.                 
          Therefore, the First Trust & Sav. Bank canon of construction                  
          suggests that shareholders did not participate in C corporation               
          activities under the 1992 proposed regulations.  As the Supreme               
          Court concluded in First Trust & Sav. Bank, where a provision has             
          been added to a later act, a court cannot supply the omission in              
          the earlier act.17                                                            

               16(...continued)                                                         
          deleted this language.  Applying the majority’s canon, one would              
          conclude the Commissioner intended shareholders to participate in             
          C corporation activities under the later regulation.  However,                
          this was not the case, as the activity definition of the 1989                 
          temporary regulations clearly shows.  See supra pp. 32-34.                    
               17 One other point:  the cases cited by the majority to                  
          support their canons of construction argument concern situations              
          where an express rule was clearly required to sustain a party’s               
          position.  For example, Independent Ins. Agents of Am., Inc. v.               
          Clarke, 955 F.2d 731 (D.C. Cir. 1992), revd. on other grounds sub             
          nom. United States Natl. Bank v. Independent Ins. Agents of Am.,              
                                                               (continued...)           




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