- 43 - was a clarification. See T.D. 8565, 1994-2 C.B. 81, 59 Fed. Reg. 50485 (Oct. 4, 1994), at “Supplementary Information: Explanation of Provisions; II. Public Comments”. Under the circumstances of this case, however, there is no reason to give the Commissioner’s retrospective rationalization contained in the preamble to the 1994 final regulations any more interpretative weight than respondent’s litigating position. Of course, a preamble may be used as an aid in interpreting the regulation it accompanies. See Armco, Inc. v. Commissioner, 87 T.C. 865, 868 (1986). But the case at hand concerns the meaning of the 1992 proposed regulations, not the meaning of the 1994 final regulations. The 1994 preamble was not a contemporaneous interpretation of the 1992 regulations in issue. As a retrospective rationalization, it’s entitled to little or no interpretative weight. See id. at 868, where we stated: The proper interpretation of a regulation as a matter of law is a responsibility that ultimately rests with the courts. In exercising its judicial function, the court may be aided by the views of the drafters on the intended meaning of the language, but to be accorded any weight, those views cannot be post hoc * * * . More importantly, the preamble’s statement that the language added to the 1992 proposed regulations’ activity definition by the 1994 final regulations was only a clarification simply does not withstand scrutiny. According to the preamble, the new language clarified a “grouping” rule contained in the 1992 proposed regulations, by explaining that a taxpayer could groupPage: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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