- 41 - 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...)Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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